Opinion
20-525
07-07-2022
JUAN DIEGO ROMERO GUACHUD, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Reuben S. Kerben, Esq., Kerben Law Firm, P.C., Kew Gardens, NY. FOR RESPONDENT: Jeffery Bossert Clark, Acting Assistant Attorney General; Anna E. Juarez, Senior Litigation Counsel; Lynda A. Do, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UNPUBLISHED OPINION
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of July, two thousand twenty-two.
FOR PETITIONER:
Reuben S. Kerben, Esq., Kerben Law Firm, P.C., Kew Gardens, NY.
FOR RESPONDENT:
Jeffery Bossert Clark, Acting Assistant Attorney General; Anna E. Juarez, Senior Litigation Counsel; Lynda A. Do, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, RICHARD C. WESLEY, EUNICE C. LEE, Circuit Judges.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Juan Diego Romero Guachud, a native and citizen of Ecuador, seeks review of a January 14, 2020, decision of the BIA affirming a May 18, 2018, decision of an Immigration Judge ("IJ") denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Juan Diego Romero Guachud, No. A 205 411 771 (B.I.A. Jan. 14, 2020), aff'g No. A 205 411 771 (Immig. Ct. N.Y. City May 18, 2018). We assume the parties' familiarity with the underlying facts and procedural history.
We have reviewed the IJ's decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review factual findings for substantial evidence and questions of law and application of law to fact de novo. See Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014). "[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
Romero Guachud asserted that he received multiple threats and was beaten once by members of a political party that he refused to support. We find no error in the agency's conclusion that he failed to establish past persecution or an objectively reasonable fear of future persecution. An asylum applicant has the burden to establish past persecution or a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b). When an applicant establishes past persecution, there is a rebuttable presumption of a well-founded fear of future persecution on the basis of his original claim. 8 C.F.R. § 1208.13(b)(1). If the applicant does not demonstrate past persecution, he bears the burden to establish an "objectively reasonable" fear of future persecution. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
The agency reasonably concluded that Romero Guachud's past interactions with members of a rival political party, which consisted of telephone calls demanding that he join that party, being stopped on the street and warned to join the party, and one beating, did not rise to the level of persecution. To constitute persecution, harm must be sufficiently severe, rising above "mere harassment." Ivanishvili v. U.S. Dep't, 433 F.3d 332, 341 (2d Cir. 2006) (holding that the difference between harassment and persecution is "necessarily one of degree that must be decided on a case-by-case basis"); see also Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) ("We have emphasized that persecution is an extreme concept that does not include every sort of treatment our society regards as offensive." (internal quotation marks and citation omitted)). Although physical abuse generally rises above harassment, a beating does not necessarily constitute persecution where, as here, it was at the hands of party members and not in the context of an arrest or detention by government officials. See Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (holding that "a minor beating . . . may rise to the level of persecution if it occurred in the context of an arrest or detention on the basis of a protected ground" (internal quotation marks omitted)); Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011) ("[T]he agency must be keenly sensitive to context in evaluating whether the harm suffered rises to the level of persecution." (internal quotation marks omitted)).
Nor did the agency err in finding that Romero Guachud failed to demonstrate a well-founded fear of future persecution, 8 C.F.R. § 1208.13(b)(2), i.e., that "his fear is objectively reasonable." Ramsameachire, 357 F.3d at 178. "Objective reasonableness entails a showing that a reasonable person in the petitioner's circumstances would fear persecution if returned to his native country." Jian Xing Huang v. U.S. INS, 421 F.3d 125, 128 (2d Cir. 2005). A fear is objectively reasonable "even if there is only a slight, though discernible, chance of persecution." Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000). But a fear is not objectively reasonable if it lacks "solid support" in the record and is "speculative at best." Jian Xing Huang, 421 F.3d at 129.
There is little evidence suggesting that Romero Guachud will be singled out for persecution if he is removed to Ecuador. Contrary to his position, the record does not reflect "persistent" threats, because members of the rival party last sought him out in 2013. Although he alleged that party members looked for him in 2017, the fact that they went to his grandparents' house in 2017 looking for him or any other young people to recruit is not evidence that they were seeking him out for persecution. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) ("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." (citation omitted)).
Romero Guachud's argument that the IJ erred by requiring him to demonstrate that he was a political leader to establish a well-founded fear mischaracterizes the IJ's decision. The IJ considered that Romero Guachud was not a political leader when determining that his fear that he would be immediately tortured and possibly killed upon returning to Ecuador was unlikely given the minimal extent of his prior involvement in politics and the fact that he had not been politically active since leaving Ecuador. Moreover, contrary to Romero Guachud's argument, the record reflects that the IJ considered the evidence of country conditions, acknowledged that there were some political problems in Ecuador, but reasonably concluded that the evidence did not support Romero Guachud's assertion that he would be arrested, tortured, and killed. The U.S. State Department report stated that there were no political disappearances, and review of the record does not reveal evidence that supporters of opposition parties are tortured and killed. Romero Guachud's failure to demonstrate an objectively reasonable fear of future persecution for asylum, necessarily precludes him from meeting the higher standards for withholding of removal and CAT relief. See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.