Claudia Garcia-Gomez v. Attorney General United States ( 2022 )


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  •                                                                   NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ______________
    No. 22-1105
    ______________
    CLAUDIA YADIRA GARCIA-GOMEZ; E. S. A.-G.,
    Petitioners
    v.
    ATTORNEY GENERAL UNITED STATES OF AMERICA
    ______________
    On Petition for Review of a Decision of
    the Board of Immigration Appeals
    (Agency Nos. A208-278-732 & A208-278-731)
    Immigration Judge: John B. Carle
    ______________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    December 6, 2022
    ______________
    Before: SHWARTZ, MATEY, and FUENTES, Circuit Judges.
    (Filed: December 8, 2022)
    ______________
    OPINION*
    ______________
    *
    This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
    does not constitute binding precedent.
    SHWARTZ, Circuit Judge.
    Claudia Garcia-Gomez (“Garcia-Gomez”) petitions for review of a Board of
    Immigration Appeals (“BIA”) decision adopting the order of the Immigration Judge
    (“IJ”) denying her and her daughter asylum. Because substantial evidence supports the
    BIA’s decision denying asylum, and remand to consider an argument of imputed political
    opinion would be futile, we will deny the petition.
    I
    After entering the United States without authorization in 2015, Garcia-Gomez and
    her daughter, both natives and citizens of Honduras, were detained and issued Notices to
    Appear. Both were charged as removable noncitizens who were present in the United
    States without having been admitted or paroled. 
    8 U.S.C. § 1182
    (a)(6)(A)(i).
    Garcia-Gomez conceded removability and submitted, among other things, an
    asylum application.1 Garcia-Gomez asserted that she had suffered past persecution and
    had a well-founded fear of future persecution on account of her membership in the
    particular social group (“PSG”) of relatives of Vicente and Wilmer Gomez, her
    grandfather and uncle and based upon an imputed political opinion.
    At her merits hearing, Garcia-Gomez explained that her parents left Honduras for
    the United States when she was young, leaving her and her siblings in the care of their
    maternal grandparents. She further testified that her maternal grandfather was shot to
    1
    Garcia-Gomez’s minor daughter was listed as a derivative on the application for
    asylum.
    2
    death outside of their home in 2012 but that she does not know why he was killed or who
    was responsible for his death. Her brother testified that “narco traffickers” murdered
    their grandfather, but he did not know why. AR 219. After his murder, and her
    grandmother’s death, she moved in with her uncle.
    Garcia-Gomez testified that the police refused to investigate the murder,
    purportedly because they had a relationship with the organization responsible for her
    grandfather’s death, and suggested that her family conduct its own investigation.
    Her uncle then commenced an investigation. Approximately two years later, he
    received threatening letters. Garcia-Gomez testified that (1) her uncle was targeted
    because he was investigating the murder; (2) she did not see the letters; (3) none of the
    letters were directed at her or her brothers; (4) her uncle told her the letters stated the
    family would be killed if it did not pay extortion money; and (5) it was her understanding
    that she and her uncle were personally at risk. Her uncle reported these threats to the
    police, but they took no action. At least one dead body was thrown in front of her uncle’s
    home, which caused her uncle to go into hiding.
    Garcia-Gomez testified that: (1) she and her daughter fled Honduras shortly
    thereafter and her brothers left approximately five months later; and (2) her paternal
    grandmother remains in Honduras, her uncle lives in the same neighborhood in Honduras
    but had to associate himself with the people who were threatening him to remain safe,
    and another uncle, who also tried to investigate her grandfather’s murder, received threats
    and now lives in Guatemala.
    3
    The IJ denied Garcia-Gomez’s request for relief, concluding: (1) her experiences
    did not rise to the level of persecution, primarily because she was never physically
    harmed or directly threatened; (2) her fear of future persecution is not objectively
    reasonable, even if subjectively genuine, because (A) her claim is premised on a fear of
    extortion, harm, and revenge “at the hands of individuals who are criminals in
    Honduras,” AR 113, which does not constitute a basis for a well-founded fear of
    persecution because the alleged persecutors’ actions had no nexus to a protected ground;
    (B) she and her brothers were never harmed and her similarly-situated family members
    continue to live in Honduras without incident; and (C) it is unclear whether the threats
    her uncle received were related to her grandfather’s death; and (3) there was no evidence
    that she or any family member was politically active, expressed any anti-gang, anti-
    criminal, or anti-cartel statements, or that any criminal cartel or gang had imputed or
    would impute such a political opinion on her.
    The BIA adopted the IJ’s decision, deemed Garcia-Gomez’s asylum claim based
    on her anti-gang political opinion waived, and dismissed her appeal.
    Garcia-Gomez petitions for review.2
    2
    Garcia-Gomez does not challenge the denial of her applications for withholding
    of removal and protection under the Convention Against Torture.
    4
    II3
    A
    A noncitizen who enters the United States without permission is removable. See 
    8 U.S.C. §§ 1182
    (a)(6)(A)(i), 1227(a)(1)(A). A removable noncitizen may be eligible for
    asylum if she demonstrates that she is “unable or unwilling to return to, and is unable or
    unwilling to avail . . . herself of the protection of, [the country to which she would be
    removed] because of persecution or a well-founded fear of persecution on account of . . .
    membership in a [PSG], or political opinion.” 
    8 U.S.C. § 1101
    (a)(42)(A); see 
    8 U.S.C. § 1158
    (b)(1)(B)(i); see also Garcia v. Att’y Gen., 
    665 F.3d 496
    , 503 (3d Cir. 2011).
    B
    1
    The IJ applied the correct standard in determining that Garcia-Gomez did not
    suffer past persecution, and his findings were supported by substantial evidence. A
    noncitizen can establish past persecution if she shows (1) “that [s]he was targeted for
    mistreatment on account of one of the statutorily-protected grounds,” (2) “that the
    incident, or incidents of mistreatment rise to the level of persecution,” and (3) “that the
    3
    The BIA had jurisdiction pursuant to 
    8 C.F.R. § 1003.1
    (b)(3). We have
    jurisdiction pursuant to 
    8 U.S.C. § 1252
    (a). “[W]here, as here, the BIA expressly adopts
    portions of the IJ’s opinion, we review both the IJ and BIA decisions.” Zhi Fei Liao v.
    Att’y Gen., 
    910 F.3d 714
    , 718 (3d Cir. 2018). “We review the BIA’s legal
    determinations de novo,” 
    id.
     (quoting Sesay v. Att’y Gen., 
    787 F.3d 215
    , 220 (3d Cir.
    2015)), and its “factual findings under the substantial evidence standard, which means
    that they are conclusive unless any reasonable adjudicator would be compelled to
    conclude to the contrary.” Fei Yan Zhu v. Att’y Gen., 
    744 F.3d 268
    , 272 n.3 (3d Cir.
    2014).
    5
    persecution was committed by the government or forces the government is either unable
    or unwilling to control.” Thayalan v. Att’y Gen., 
    997 F.3d 132
    , 138 (3d Cir. 2021)
    (citations and internal quotation marks omitted).
    “[P]ersecution” encompasses “threats to life, confinement, torture, and economic
    restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 
    12 F.3d 1233
    , 1240 (3d Cir. 1993). In evaluating whether an unfulfilled threat meets the
    definition of “persecution,” we examine whether the threat is “concrete and menacing.”
    Herrera-Reyes v. Att’y Gen., 
    952 F.3d 101
    , 108 (3d Cir. 2020).4 An unfulfilled threat is
    sufficiently “concrete and menacing” to establish past persecution when the threat,
    “considered in the context of the full record,” presents a “severe affront” to a petitioner’s
    “life or freedom.” 
    Id.
     A pattern of threatening conduct “substantiated by physical or
    economic harm to herself, her family, her property, or those in a close relationship to her”
    constitutes past persecution, 
    id. at 111
    , though proof of physical harm is not required,
    Blanco v. Att’y Gen., 
    967 F.3d 304
    , 311 (3d Cir. 2020).
    The record does not compel the conclusion that Garcia-Gomez suffered past
    persecution. Of course, the murder of her grandfather was a harm to her family, but
    4
    The IJ stated that threats must be “so menacing as to cause significant actual
    suffering or harm,” AR 111, which differs slightly from the requirement that, for a threat
    to constitute persecution, it must be sufficiently concrete and menacing such that it
    constitutes a “severe threat to life or freedom,” Herrera-Reyes, 952 F.3d at 109 (internal
    quotation marks omitted). The IJ’s findings nonetheless show that the threats Garcia-
    Gomez described do not constitute persecution. Based upon a review of the cumulative
    events, the IJ found that Garcia-Gomez was never directly threatened nor physically
    harmed and these findings support the conclusion that the threats were neither concrete
    nor menacing as to her, and thus she did not suffer persecution as a matter of law.
    6
    Garcia-Gomez testified that he was murdered for unknown reasons, the threats came
    approximately two years later, neither she nor any family members were harmed in
    connection with the threats, and, importantly, no threat was directed toward her.
    Thus, the record does not compel the conclusion that these events show that
    Garcia-Gomez suffered past persecution.
    3
    The record also does not compel the conclusion that Garcia-Gomez has a well-
    founded fear of future persecution based upon her membership in the PSG of family of
    her grandfather and uncle. A “well-founded fear of future persecution” requires both
    “subjective apprehension” and a showing “that a reasonable person in [the applicant’s]
    position would fear persecution, either because [s]he would be individually singled out
    for persecution or because there is a pattern or practice in [her] home country of
    persecution against a group of which [s]he is a member,”5 Huang v. Att’y Gen., 
    620 F.3d 372
    , 381 (3d Cir. 2010) (internal quotation marks omitted).6 To satisfy the future
    persecution element, there must also be a “reasonable possibility” that she will suffer
    such persecution, 
    8 C.F.R. § 1208.13
    (b)(2)(i)(B).
    5
    No party challenges the agency’s findings that members of Garcia-Gomez’s
    immediate family is a cognizable PSG, Garcia-Gomez is a member of that group, and she
    has a subjective fear of future persecution. We therefore examine only whether she has
    shown an objective fear of future persecution and whether there is a nexus between the
    feared persecution and her membership in the PSG. See S.E.R.L. v. Att’y Gen., 
    894 F.3d 535
    , 544 (3d Cir. 2018).
    6
    Garcia-Gomez did not exhaust her argument that the IJ’s decision failed to
    conform with the framework laid out in Huang, Lin v. Att’y Gen., 
    543 F.3d 114
    , 125 (3d
    Cir. 2008), and therefore we will not consider it.
    7
    Substantial evidence supports the BIA and IJ’s conclusion that there is not a
    reasonable possibility that Garcia-Gomez would be singled out for persecution, or that
    there is a pattern or practice of persecution of her family members. Garcia-Gomez has
    not shown that she was ever directly threatened nor has she shown that she would be
    targeted by those threatening her uncles, given that the threats were due to her uncles’
    investigation into her grandfather’s murder, an investigation in which she played no role.
    Indeed, only family members involved in investigating the murder reported receiving
    threats.
    Substantial evidence also supports the BIA and IJ’s determination that Garcia-
    Gomez has not shown a nexus between the persecution she fears and her PSG. To show
    that a nexus exists, a noncitizen must demonstrate that membership in the PSG is “at least
    one central reason” for the persecution. 
    8 U.S.C. § 1158
    (b)(1)(B)(i). “[A]sylum may not
    be granted if a protected ground is only an incidental, tangential, or superficial reason for
    persecution of an asylum applicant.” Ndayshimiye v. Att’y Gen., 
    557 F.3d 124
    , 130 (3d
    Cir. 2009) (internal quotation marks omitted).
    The record does not compel the conclusion that membership in Garcia-Gomez’s
    family would be “one central reason” for any future persecution. As the IJ recognized,
    several of Garcia-Gomez’s family members reside in Honduras and there is no evidence
    that they have suffered harm on account of their membership in the family. Although she
    testified that one uncle was threatened and moved to Guatemala, she also testified that
    this was a result of his own attempt to investigate her grandfather’s murder. Thus,
    8
    substantial evidence supports the conclusion that her two uncles were targeted because of
    their investigations, and not because of their membership in the family. See, e.g., Shehu
    v. Att’y Gen., 
    482 F.3d 652
    , 657 (3d Cir. 2007) (finding substantial evidence that
    kidnapping and beatings following efforts to thwart a robbery did not establish that the
    alleged persecutors were motivated by animus toward the applicant’s family,
    “particularly as [the applicant] adduced no evidence showing that family members not
    involved in thwarting the robbery were threatened”). Substantial evidence thus supports
    the finding that Garcia-Gomez did not establish a well-founded fear of future persecution
    based on her PSG.
    C
    The BIA erred in finding that Garcia-Gomez waived any claim that she had a well-
    founded fear of future persecution due to an imputed anti-gang opinion but remand to the
    BIA to consider this claim would be futile.
    “Generally speaking, a court of appeals should remand a case to an agency for
    decision of a matter that statutes place primarily in agency hands.” INS v. Ventura, 
    537 U.S. 12
    , 16 (2002). However, where “the BIA on remand would be unable as a matter of
    law to grant the relief sought,” Ricketts v. Att’y Gen., 
    955 F.3d 348
    , 352 (3d Cir. 2020),
    we may decline to remand because remand would be futile.
    Remand here would be futile. To establish a well-founded fear of persecution
    based on an imputed political opinion, Garcia-Gomez would have to show past
    persecution or a subjective and objective fear of future persecution, see Lukwago v.
    9
    Ashcroft, 
    329 F.3d 157
    , 174 (3d Cir. 2003), as well as that the persecutors “attributed a
    political opinion to [her], and acted upon the attribution.” Espinosa-Cortez v. Att’y Gen.,
    
    607 F.3d 101
    , 108 (3d Cir. 2010) (citations and internal quotation marks omitted). As
    discussed above, Garcia-Gomez has not established either past persecution or an
    objectively reasonable fear of future persecution. Additionally, there is no evidence
    indicating that anyone imputed an anti-gang political opinion to her or would act upon the
    attribution. See, e.g., Shou Wei Jin v. Holder, 
    572 F.3d 392
    , 396 (7th Cir. 2009) (holding
    that “remand would be futile” because the petitioner “presented no evidence” that
    supported his argument under the correct legal standard). Thus, because the “BIA on
    remand would be unable as a matter of law to grant the relief sought,” we need not
    remand to the BIA for further consideration. Ricketts, 955 F.3d at 352.
    III
    For the foregoing reasons, we will deny Garcia-Gomez’s petition for review.
    10