Vasquez v. Garland

20-2800 Vasquez v. Garland BIA Ruehle, IJ A209 449 607 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 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 2nd day of November, two thousand twenty5 two. [6] 7 PRESENT: 8 RICHARD C. WESLEY, 9 MICHAEL H. PARK, 10 BETH ROBINSON, 11 Circuit Judges. 12 _____________________________________ [13] 14 UBERTO GALICIA VASQUEZ, 15 Petitioner, [16] 17 v. 20-2800 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ [23] 24 FOR PETITIONER: Frederick P. Korkosz, Esq., 25 Albany, NY. [26] 27 FOR RESPONDENT: Brian Boynton, Acting Assistant 28 Attorney General; Keith I. 1 McManus, Assistant Director; 2 Rachel L. Browning, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC. 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner Uberto Galicia Vasquez, a native and citizen 12 of Guatemala, seeks review of an August 3, 2020, decision of 13 the BIA affirming an August 24, 2018, decision of an 14 Immigration Judge (“IJ”) denying his application for 15 withholding of removal. In re Uberto Galicia Vasquez, No. A 16 209 449 607 (B.I.A. Aug. 3, 2020), aff’g No. A 209 449 607 17 (Immig. Ct. Buffalo Aug. 24, 2018). We assume the parties’ 18 familiarity with the underlying facts and procedural history. 19 We have reviewed the IJ’s decision as modified by the 20 BIA, i.e., minus the IJ’s adverse credibility determination 21 because the BIA assumed credibility. See Xue Hong Yang v. 22 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We 23 review factual findings for substantial evidence and 24 questions of law de novo. Weng v. Holder, 562 F.3d 510 , 513 [2] 1 (2d Cir. 2009); see also 8 U.S.C. § 1252 (b)(4)(B) (“the 2 administrative findings of fact are conclusive unless any 3 reasonable adjudicator would be compelled to conclude to the 4 contrary”). 5 To qualify for withholding of removal, Vasquez had to 6 show past persecution or that he will “more likely than not” 7 be persecuted in the future. 8 C.F.R. § 1208.16 (b); see Wei 8 Sun v. Sessions, 883 F.3d 23 , 27–28 (2d Cir. 2018) 9 (“Eligibility for withholding of removal requires a clear 10 probability of persecution, i.e., it is more likely than not 11 that the alien would be subject to persecution.” (ellipsis 12 and quotation marks omitted)). The agency did not err in 13 finding that Vasquez failed to show past harm that rose to 14 the level of persecution or that his fear of future 15 persecution was objectively reasonable. 16 Vasquez testified that members of a drug cartel left 17 “papers” at his home telling his family he had to sell drugs 18 or the family “was going to pay for it” and that sometime in 19 2014 he received a call from people he could not identify 20 asking him to take drugs from one place to another, or across 21 the border. He could not recall if he received one or two [3] 1 calls, but the caller threatened to kill him or someone in 2 his family if he did not sell drugs. He reported the call 3 to the police but could not give the caller’s name because he 4 did not know it. He was never physically harmed, and he did 5 not receive threats during the five months before he left 6 Guatemala in 2015. Vasquez testified that that the only 7 physical harm to him or his family was that his sister was 8 killed in 2018; but he did not know who killed her or why. 9 Based on this record, the agency reasonably determined that 10 Vasquez did not demonstrate harm rising to the level of past 11 persecution. See Ci Pan v. U.S. Att’y Gen., 449 F.3d 408 , 12 412 (2d Cir. 2006) (noting that courts have “rejected [past 13 persecution] claims involving ‘unfulfilled’ threats”); see 14 also Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007) (an 15 applicant cannot claim persecution based on harm to a family 16 member unless the harm was on account of the same protected 17 ground that was the basis of the asylum claim and the 18 applicant was “within the zone of risk” when the family member 19 was harmed). 20 Vasquez also failed to establish “a clear probability” 21 of future persecution, i.e., that it was “more likely than [4] 1 not” that he would be persecuted if he returned to Guatemala. 2 Wei Sun, 883 F.3d at 27–28; see also 8 C.F.R. § 1208.16 (b)(2). 3 He testified that he stayed in Guatemala for five months 4 without incident after the last threat; his mother, wife, and 5 daughter remained unharmed and had no further communications 6 from cartels or drug dealers; and he had no evidence to 7 connect his sister’s death in 2018 to the threats he received 8 before he left Guatemala. See Huang v. U.S. INS, 421 F.3d 9 125, 129 (2d Cir. 2005) (“In the absence of solid support in 10 the record . . . [applicant’s] fear is speculative at best.”). 11 Because the agency did not err in finding that Vasquez 12 failed to meet his burden to show past persecution or a clear 13 probability of future persecution, we need not consider his 14 remaining arguments regarding the Guatemalan government’s 15 ability to protect him or whether his social group is 16 cognizable. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 17 (“As a general rule courts and agencies are not required to 18 make findings on issues the decision of which is unnecessary 19 to the results they reach.”). [5] 1 For the foregoing reasons, the petition for review is 2 DENIED. All pending motions and applications are DENIED and 3 stays VACATED. 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court