Blanco-Salvador v. Holder , 476 F. App'x 950 ( 2012 )

10-2037-ag
Blanco-Salvador v. Holder
BIA
Videla, IJ
A075 798 462
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 25th day of April, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.
_______________________________________
WILBER LEONEL BLANCO-SALVADOR,
Petitioner,
v. 10-2037-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Anne Pilsbury, Central American
Legal Services, Brooklyn, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Linda S. Wernery, Assistant
Director; James E. Grimes, Senior
Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED in part and GRANTED in part.
Petitioner Wilber Leonel Blanco-Salvador, a native and
citizen of El Salvador, seeks review of a May 7, 2010, order
of the BIA reversing immigration judge (“IJ”) Gabriel C.
Videla’s February 8, 2000, decision granting his application
for asylum. In re Wilber Leonel Blanco-Salvador, No. A075
798 462 (B.I.A. May 7, 2010); rev’g No. A075 798 462 (Immig.
Ct. N.Y. City Feb. 8, 2000). We assume the parties’
familiarity with the underlying facts and procedural history
of this case.
Under the circumstances of this case, we have reviewed
only the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005). The applicable standards of review
are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
2009).
An alien who establishes past persecution on account of
protected ground “shall also be presumed to have a well-
founded fear of persecution on the basis of the original
claim.” See 8 C.F.R. § 1208.13(b)(1). However, the
2
presumption may be rebutted if, inter alia, the agency finds
that “[t]here has been a fundamental change in circumstances
such that the applicant no longer has a well-founded fear of
persecution in the applicant’s country of nationality.”
8 C.F.R. § 1208.13(b)(1)(i)(A); see also Lecaj v. Holder,
616 F.3d 111, 115 (2d Cir. 2010). The government bears the
burden to establish such a fundamental change in country
conditions by a preponderance of the evidence. 8 C.F.R.
§ 1208.13(b)(1)(ii); see also Lecaj, 616 F.3d at 115.
Here, the BIA determined that, even assuming that
Blanco-Salvador demonstrated past persecution, circumstances
in El Salvador had fundamentally changed such that he no
longer had a well-founded fear of persecution.
Specifically, the BIA found that “the civil war in El
Salvador ended in 1991 and that the guerillas are no longer
active,” and that “while human rights issues remain in El
Salvador and violence persists, it is no longer due to a
civil war and the government is not targeting certain
localities thought to be pro-guerrilla.” In doing so, the
BIA took administrative notice of the 2009 U.S. State
Department Report on El Salvador (“2009 Report”), in
addition to the 1997 U.S. State Department Report (“1997
Report”) in the record.
3
Blanco-Salvador argues that the BIA engaged in
impermissible fact-finding by taking administrative notice
of the 2009 report. However, it is “well-settled” that the
BIA has the authority to take administrative notice of
current events bearing on an asylum applicant’s well-founded
fear of persecution, including State Department reports.
See Jian Hui Shao v. Mukasey, 546 F.3d 138, 166 (2d Cir.
2008). Furthermore, because the BIA relied on the 1997
Report, which was part of the administrative record, in
addition to the 2009 Report in finding a fundamental change
in circumstances in El Salvador, its failure to inform
Blanco-Salvador of its intention to take administrative
notice of the 2009 Report did not violate his right to due
process. See Jian Hui Shao, 546 F.3d at 167-68; cf. Burger
v. Gonzales, 498 F.3d 131, 132-33 (2d Cir. 2007); Chhetry
v. U.S. Dep’t of Justice, 490 F.3d 196, 198 (2d Cir. 2007).
Blanco-Salvador’s contention that “[t]here is still
much political violence in El Salvador and it is the
Government’s burden to show that [he] is no longer in
danger” is unavailing. Even if Blanco-Salvador established
past persecution, the presumption of a well-founded fear to
which he was entitled applies only to persecution “on the
basis of the original claim.” See 8 C.F.R. § 1208.13(b)(1)
4
(emphasis added). The fact that violence continues in El
Salvador is therefore insufficient to demonstrate that
Blanco-Salvador would be persecuted on the basis of his
original claim that the military targeted him due to its
belief that he supported the guerillas. Id.; see also
Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999)
(“General violence . . . does not constitute persecution,
nor can it form a basis for petitioner’s well-founded fear
of persecution”). Furthermore, although Blanco-Salvador
referred to problems with “forced recruitment” by the
guerillas in 1994, he did not claim that the recruitment
amounted to past persecution. In any event, as the BIA
observed, forced recruitment is not a proper basis for
asylum. See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992)
(“the mere existence of a generalized ‘political’ motive
underlying the guerillas’ forced recruitment is inadequate
to establish (and, indeed, goes far to refute) the
proposition that Elias-Zacarias fears persecution on account
of political opinion”) (emphasis in original). Thus, the
BIA did not err in denying Blanco-Salvador’s application for
asylum and withholding of removal.
With respect to Blanco-Salvador’s request for
humanitarian asylum under 8 C.F.R. § 1208.13(b)(1)(iii), we
5
have found that to merit a grant of humanitarian asylum on
the basis of severe past persecution, an applicant must
demonstrate “long-lasting physical or mental effects of his
persecution.” Omaro Jalloh v. Gonzales, 498 F.3d 148, 152
(2d Cir. 2007); see also Hoxhallari v. Gonzales, 468 F.3d
179, 184 (2d Cir. 2006) (upholding the denial of
humanitarian asylum to a supporter of the Democratic Party
in Albania who had been beaten and harassed on six
occasions). Here, the BIA’s determination that Blanco-
Salvador failed to demonstrate “severe” persecution, see
8 C.F.R. § 1208.13(b)(1)(iii)(A), was not based on
impermissible fact-finding. Rather, the BIA made a legal
determination that the facts found by the IJ were
insufficient to merit a grant of humanitarian asylum. See
Jian Hui Shao, 546 F.3d at 162-63 (concluding that the BIA
did not erroneously conduct de novo review of the IJ’s
factual findings by making “a legal determination that,
while [petitioner’s] credible testimony was sufficient to
demonstrate a genuine subjective fear of future persecution,
more was needed to demonstrate the objective reasonableness
of that fear”).
While the BIA may have appropriately denied Blanco-
Salvador humanitarian asylum based on the severity of his
6
past persecution, however, they failed to address entirely 8
C.F.R. § 1208.13(b)(1)(iii)(B), which allows for
humanitarian asylum based on the “reasonable possibility
that [a petitioner] may suffer other serious harm upon
removal...” The BIA is obligated to at least address
petitioner’s claims on this point. The failure to do so
cannot be excused by the rejection of petitioner’s other
claims, as subsection(iii)(B) provides for asylum in the
absence of a well-founded fear of persecution and in the
absence of severe past treatment. On remand the BIA may well
find that there is no “other serious harm” that will befall
Blanco-Salvador on removal. This may be appropriate, or it
may not. We cannot know until the BIA actually provides a
basis for its decision. A remand to the BIA for the limited
purposes of addressing Blanco-Salvador’s claims of other
serious harm is appropriate.
For the foregoing reasons, the petition for review is
DENIED in part and GRANTED in part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
7