Quijada-Perez v. Garland ( 2022 )

20-1448
Quijada-Perez v. Garland
BIA
Nelson, IJ
A205 077 632
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 13th day of September, two thousand twenty-
5 two.
6
7 PRESENT:
8 RAYMOND J. LOHIER, JR.,
9 STEVEN J. MENASHI,
10 BETH ROBINSON,
11 Circuit Judges.
12 _____________________________________
13
14 FIDENCIO JORGE REYNALDO QUIJADA-
15 PEREZ,
16 Petitioner,
17
18 v. 20-1448
19 NAC
20 MERRICK B. GARLAND, UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Bibiana C. Andrade, New York, NY.
26
27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
28 Attorney General; Anthony P.
1 Nicastro, Assistant Director;
2 Linda Y. Cheng, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of
5 Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Fidencio Jorge Reynaldo Quijada-Perez, a
11 native and citizen of Guatemala, seeks review of an April 3,
12 2020, decision of the BIA affirming a March 22, 2018, decision
13 of an Immigration Judge (“IJ”) denying his application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Quijada-Perez, No.
16 A 205 077 632 (B.I.A. Apr. 3, 2020), aff’g No. A 205 077 632
17 (Immig. Ct. N.Y. City Mar. 22, 2018). We assume the parties’
18 familiarity with the underlying facts and procedural history.
19 We have reviewed the IJ’s decision. See Mei Chai Ye v.
20 U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir. 2007). The
21 applicable standards of review are well established. See
22 8 U.S.C. § 1252(b)(4)(B) (“the administrative findings of
23 fact are conclusive unless any reasonable adjudicator would
24 be compelled to conclude to the contrary”); Yanqin Weng v.
2
1 Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing fact
2 finding for substantial evidence and questions of law de
3 novo). The agency did not err in finding that Quijada-Perez
4 failed to establish past persecution or a well-founded fear
5 of future persecution.
6 Quijada-Perez claimed that he received threatening
7 telephone calls in 2011 after he witnessed election fraud in
8 Guatemala. The IJ did not exceed the bounds of reasonable
9 adjudication in concluding that these threats do not
10 establish past persecution. See Gui Ci Pan v. U.S. Att’y
11 General, 449 F.3d 408, 412–13 (2d Cir. 2006). Unfulfilled
12 threats must be “of a highly imminent and menacing nature in
13 order to constitute persecution.” Zhen Hua Li v. Att’y Gen.,
14 400 F.3d 157, 164 (3rd Cir. 2005); see also Lim v. I.N.S.,
15 224 F.3d 929, 936 (9th Cir. 2000) (recognizing “a small
16 category of cases” in which threats can amount to past
17 persecution if they “are so menacing as to cause significant
18 actual ‘suffering or harm’”). Quijada-Perez confirmed that
19 he was not physically harmed, and he did not allege that any
20 attempts were made to harm him or his family. He offered no
21 particular evidence that the threats reflected a credible and
3
1 imminent risk of harm to him. On this record, the agency
2 reasonably determined that he did not suffer past
3 persecution. See Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
4 Cir. 2011) (“We have emphasized that persecution is an extreme
5 concept that does not include every sort of treatment our
6 society regards as offensive.” (quotation marks omitted));
7 Gui Ci Pan, 449 F.3d at 412–13.
8 Quijada-Perez thus had the burden to establish a “well-
9 founded fear” of future persecution. 8 C.F.R.
10 § 1208.13(b)(1). A well-founded fear is one that is both
11 credible and “objectively reasonable.” Ramsameachire v.
12 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). Although a “fear
13 may be well-founded even if there is only a slight, though
14 discernible, chance of persecution,” Diallo v. INS, 232 F.3d
15 279, 284 (2d Cir. 2000), “[i]n the absence of solid support
16 in the record . . . , [an applicant’s] fear is speculative at
17 best,” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d
18 Cir. 2005).
19 The agency did not err in finding the future persecution
20 claim speculative. Quijada-Perez alleged that he would still
21 be in danger if he returned to Guatemala, but the threats
4
1 were made in 2011 in the week following the election, he did
2 not receive further threats, his fellow party members were
3 not harmed after protesting against election fraud the same
4 week, the opposition party won the election, and he did not
5 allege that any attempts were made to harm him or his family.
6 Nor did Quijada-Perez demonstrate that the callers would find
7 him if he returned to Guatemala given that he witnessed fraud
8 related to a municipal election, not a national one, and he
9 did not allege continued interest in him. On this record,
10 the agency reasonably concluded that Quijada-Perez’s fear of
11 future persecution was speculative. See Jian Xing Huang, 421
12 F.3d at 129.
13 The above findings are dispositive of both asylum and
14 withholding of removal. See 8 C.F.R. §§ 1208.13(b)(1), (2),
15 1208.16(b)(1), (2). Quijada-Perez has waived his CAT claim
16 by failing to argue it in his brief. See Yueqing Zhang v.
17 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)
18 (deeming CAT claim abandoned where not argued in brief).
19 Moreover, his failure to demonstrate a well-founded fear of
20 persecution is dispositive because a CAT claim requires a
21 greater likelihood of future harm. See Lecaj v. Holder, 616
5
1 F.3d 111, 119–20 (2d Cir. 2010) (an applicant who fails to
2 establish the “chance of persecution required for . . . asylum
3 . . . necessarily fails to demonstrate . . . the more likely
4 than not to be tortured standard required for CAT relief”
5 (quotation marks and citation omitted)).
6 For the foregoing reasons, the petition for review is
7 DENIED. All pending motions and applications are DENIED and
8 stays VACATED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
6