Coreas-Alvarado v. Barr

18-1659 Coreas-Alvarado v. Barr BIA Christensen, IJ A206 687 871 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 14th day of December, two thousand twenty. [5] 6 PRESENT: 7 José A. Cabranes, 8 Susan L. Carney, 9 Richard J. Sullivan, 10 Circuit Judges. 11 _____________________________________ [12] 13 DUGLAS SEBASTIAN COREAS-ALVARADO, 14 Petitioner, [15] 16 v. 18-1659 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [23] 24 FOR PETITIONER: Kennji Kizuka, Esq., Human Rights 25 First, New York, NY. [26] 1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; Mary Jane Candaux, 3 Assistant Director; Stephanie E. 4 Beckett, Trial Attorney; Michael 5 Christopher Heyse, Trial Attorney, 6 Office of Immigration Litigation, 7 United States Department of 8 Justice, Washington, DC. 9 UPON DUE CONSIDERATION of this petition for review of a 10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED that the petition for review 12 is DENIED. 13 Petitioner Duglas Sebastian Coreas-Alvarado, a native 14 and citizen of El Salvador, seeks review of a May 8, 2018 15 decision of the BIA affirming a July 7, 2017 decision of an 16 Immigration Judge (“IJ”) denying Coreas-Alvarado’s 17 application for asylum, withholding of removal, and relief 18 under the Convention Against Torture (“CAT”). In re Duglas 19 Sebastian Coreas-Alvarado, No. A 206 687 871 (B.I.A. May 8, 20 2018), aff’g No. A 206 687 871 (Immig. Ct. N.Y. City July 7, 21 2017). We assume the parties’ familiarity with the 22 underlying facts and procedural history. 23 Coreas-Alvarado argues that the immigration court lacked 24 jurisdiction over his removal proceedings because his notice 25 to appear did not include the time and date of his hearing. 26 Our decision in Banegas Gomez v. Barr, 922 F.3d 101, 110 (2d [2] 1 Cir. 2019), forecloses this argument. “[A]n NTA that omits 2 information regarding the time and date of the initial removal 3 hearing is nevertheless adequate to vest jurisdiction in the 4 Immigration Court, at least so long as a notice of hearing 5 specifying this information is later sent to the alien.” Id. 6 at 112. Coreas-Alvarado was served with a hearing notice and 7 appeared at the hearing. His argument is thus defeated. 8 Turning to the merits, we have reviewed the IJ’s decision 9 as supplemented by the BIA. See Yan Chen v. Gonzales, 417 10 F.3d 268, 271 (2d Cir. 2005). The applicable standards of 11 review are well established. See 8 U.S.C. § 1252 (b)(4)(B); 12 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) 13 (reviewing de novo questions of law and applications of law 14 to undisputed fact); Edimo-Doualla v. Gonzales, 464 F.3d 276 , 15 281–83 (2d Cir. 2006) (reviewing nexus determinations for 16 substantial evidence). 17 An asylum applicant has the burden of showing that he 18 has suffered past persecution, or has a well-founded fear of 19 future persecution, “on account of race, religion, 20 nationality, membership in a particular social group, or 21 political opinion.” 8 U.S.C. § 1101 (a)(42); see id. 22 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). Substantial evidence [3] 1 supports the agency’s finding that Coreas-Alvarado did not 2 show that he was persecuted on account of his anti-gang 3 political opinion or his particular social group of immediate 4 family members of Salvadoran police officers. 5 Political opinion can be either real or imputed by the 6 persecutor, but in either case, it must be the persecutor’s 7 motivation for the harm to support an asylum claim. See 8 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005). 9 Coreas-Alvarado testified that gangs target “everybody,” and 10 he has not demonstrated that gang members were motivated to 11 target him for reasons other than increasing their own ranks 12 and control. See id.; Melgar de Torres v. Reno, 191 F.3d 13 307, 314 (2d Cir. 1999) (“general crime conditions” do not 14 constitute persecution on account of a protected ground). 15 Additionally, because he has not adduced evidence of 16 alternative motives, he has not demonstrated that the agency 17 erroneously failed to employ a mixed-motive analysis. See 18 Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014) (asylum 19 may be granted “where there is more than one motive for 20 mistreatment, as long as at least one central reason for the 21 mistreatment is on account of a protected ground”) (internal 22 quotation marks omitted). [4] 1 That gang members harmed Coreas-Alvarado only after his 2 refusal to join their ranks, without more, is insufficient to 3 show an actionable nexus between the attacks and his political 4 opinion. See I.N.S. v. Elias-Zacarias, 502 U.S. 478 , 482–84 5 (1992) (holding that guerrillas’ retaliation for petitioner’s 6 refusal to join was not motivated by political opinion). 7 Additionally, Coreas-Alvarado’s argument that resisting 8 recruitment is effectively resisting political control 9 (because, assertedly, gangs have formed a parallel governing 10 structure in El Salvador) is unavailing in light of the 11 principle that “the mere existence of a generalized 12 ‘political’ motive underlying . . . forced recruitment is 13 inadequate to establish (and indeed, goes far to refute) the 14 proposition that [an applicant] fears persecution on account 15 of political opinion.” Id. at 482 . 16 Substantial evidence also supports the agency’s 17 determination that Coreas-Alvarado did not establish a well- 18 founded fear of future persecution that is based on his 19 membership in the particular social group that he asserts: 20 immediate family members of current and former Salvadoran 21 police officers. When an applicant has not established past 22 persecution on account of a protected ground, he may establish [5] 1 eligibility for asylum by demonstrating a well-founded fear 2 of future persecution. 8 C.F.R. § 1208.13 (b)(2). To do so, 3 the applicant must “present credible testimony that he 4 subjectively fears persecution and establish that his fear is 5 objectively reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 6 169, 178 (2d Cir. 2004). A fear may be objectively reasonable 7 “even if there is only a slight, though discernible, chance 8 of persecution,” Diallo v. I.N.S., 232 F.3d 279, 284 (2d Cir. 9 2000), but not if it lacks “solid support” in the record and 10 is merely “speculative at best,” Jian Xing Huang v. U.S. 11 I.N.S., 421 F.3d 125, 129 (2d Cir. 2005). To demonstrate 12 such a well-founded fear, the applicant must show either a 13 reasonable possibility that he would be singled out for 14 persecution if removed or that the country of removal has a 15 pattern or practice of persecuting similarly situated 16 individuals. 8 C.F.R. § 1208.13 (b)(2)(iii). 17 Coreas-Alvarado cites evidence showing that, starting in 18 2015, gangs have engaged in a targeted assassination campaign 19 against officers and their families. Most of this evidence, 20 however, indicates that attacks on officers’ family members 21 were incidental to attacks on officers themselves. Moreover, 22 the agency correctly observed that Coreas-Alvarado did not [6] 1 live with his father in El Salvador and does not have a close 2 relationship with him, that his father has not been targeted 3 by gangs in the past, and that gangs did not mention Coreas- 4 Alvarado’s father when they attacked him. Accordingly, his 5 stated fear that he will be targeted by gangs on account of 6 his father’s occupation lacks “solid support in the record” 7 and “is speculative at best.” See Jian Xing Huang, 421 F.3d 8 at 129 . 9 Finally, substantial evidence supports the agency’s 10 determination that Coreas-Alvarado did not establish his 11 eligibility for CAT relief. To show CAT eligibility, an 12 applicant must demonstrate that someone in his particular 13 circumstances would “more likely than not” be tortured “by or 14 at the instigation of or with the consent or acquiescence of 15 a public official or other person acting in an official 16 capacity.” 8 C.F.R. §§ 1208.18 (a)(1), 1208.16(c)(2), 17 1208.17(a); see Khouzam v. Ashcroft, 361 F.3d 161, 170 (2d 18 Cir. 2004); Mu-Xing Wang v. Ashcroft, 320 F.3d 130 , 143–44 19 (2d Cir. 2003). 20 The agency reasonably determined that Coreas-Alvarado 21 did not suffer torture in the past, because “torture requires 22 proof of something more severe than the kind of treatment [7] 1 that would suffice to prove persecution.” Kyaw Zwar Tun v. 2 U.S. I.N.S., 445 F.3d 554, 567 (2d Cir. 2006). Further, it 3 reasonably determined that Coreas-Alvarado did not 4 demonstrate that he would more likely than not be tortured 5 upon his return to El Salvador and did not err in failing to 6 consider explicitly specific country conditions evidence and 7 an expert affidavit addressing torture and the murders in 8 some locales of men who refused gang recruitment. The IJ 9 acknowledged the “high rates of violence and crime in El 10 Salvador” and “evidence in the record that individuals who 11 refuse to join a gang may be subject to gang violence,” but 12 reasonably concluded that this evidence did not carry Coreas- 13 Alvarado’s heavy burden of showing that he would “more likely 14 than not” be tortured upon his return. Certified Admin. R. at 15 78; see 8 C.F.R. §§ 1208.18 (a)(1); Xiao Ji Chen v. U.S. Dep’t 16 of Justice, 471 F.3d 315 , 336 n.17 (2d Cir. 2006) (explaining 17 that this Court “presume[s] that an IJ has taken into account 18 all of the evidence before him, unless the record compellingly 19 suggests otherwise”); see also Jian Hui Shao v. Mukasey, 546 20 F.3d 138, 169 (2d Cir. 2008) (stating that the agency need 21 not “expressly parse or refute on the record each individual 22 argument or piece of evidence offered by the petitioner”) [8] 1 (internal quotation marks omitted). 2 For the foregoing reasons, the petition for review is 3 DENIED. All pending motions and applications are DENIED and 4 stays VACATED. 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court