20-868 Maldonado-Luna v. Garland BIA Conroy, IJ A088 442 871

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 TO 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 16th day of February, two thousand twenty- 5 two. 6 7 PRESENT: 8 DENNIS JACOBS, 9 RAYMOND J. LOHIER, JR., 10 BETH ROBINSON, 11 Circuit Judges. 12 _________________________________________ 13 14 CANDIDO MALDONADO-LUNA, 15 Petitioner, 16 17 v. 20-868 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _________________________________________ 23 24 FOR PETITIONERS: Michael Yurasov-Lichtenberg, 25 Havens & Lichtenberg PLLC, New 26 York, NY. 27 28 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 29 Assistant Attorney General; Linda 30 S. Wernery, Assistant Director; 1 Gregory M. Kelch, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC. 5 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 Candido Maldonado-Luna, a native and citizen

11 of Mexico, seeks review of a February 10, 2020 decision of

12 the BIA affirming a March 28, 2018 decision of an Immigration

13 Judge (“IJ”), which denied withholding of removal and relief

14 under the Convention Against Torture (“CAT”). See In re

15 Candido Maldonado-Luna, No. A088 442 871 (B.I.A. Feb. 10,

16 2020), aff’g No. A088 442 871 (Immig. Ct. N.Y.C. Mar. 28,

17 2018). We assume the parties’ familiarity with the

18 underlying facts and procedural history.

19 We review both the IJ’s and the BIA’s opinions “for the

20 sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,

21

(2d Cir. 2006). Because Maldonado-Luna

22 does not challenge the denial of his CAT claim in this Court,

23 we address only withholding of removal. “We review factual

24 findings under the substantial evidence standard, treating

25 5them as ‘conclusive unless any reasonable adjudicator would

2 1 be compelled to conclude to the contrary.’” Paloka v.

2 Holder,

(2d Cir. 2014) (quoting 8 U.S.C.

3 § 1252(b)(4)(B)). We review questions of law — and the

4 application of law to undisputed facts — de novo. Id.

5 An applicant for withholding of removal must establish

6 past persecution or a likelihood of future persecution on

7 account of “race, religion, nationality, membership in a

8 particular social group, or political opinion.” 8 U.S.C.

9 § 1231(b)(3)(A);

(b). “[P]ersecution is

10 an extreme concept that does not include every sort of

11 treatment our society regards as offensive.” Mei Fun Wong

12 v. Holder,

(2d Cir. 2011) (quotation marks

13 omitted). The persecution in question must rise above “mere

14 harassment.” Ivanishvili v. U.S. Dep’t of Just.,

(2d Cir. 2006). For economic deprivation to

16 constitute persecution, “an asylum applicant must offer some

17 proof that he suffered a deliberate imposition of substantial

18 economic disadvantage.” Guan Shan Liao v. U.S. Dep’t of

F.3d 61, 70 (2d Cir. 2002) (quotation marks

20 omitted).

21 The agency did not err in finding that Maldonado-Luna

22 failed to establish that he suffered past persecution,

23 economic or otherwise. The only harm Maldonado-Luna alleged 3 1 he personally suffered in Mexico stemmed from verbal insults,

2 but these were “mere harassment” that did not rise to the

3 level of persecution, see Ivanishvili,

; Mei

4 Fun Wong,

. He also testified that, while he

5 was living in the United States, (1) a man who claimed to be

6 a government official swindled his wife out of a substantial

7 sum of money, and (2) his niece was murdered by an abusive

8 ex-boyfriend. But “an asylum applicant cannot claim past

9 persecution based solely on harm that was inflicted on []

10 family member[s].” Tao Jiang v. Gonzales,

, 141

11 (2d Cir. 2007). A successful asylum applicant must instead

12 “rely upon harm the applicant has suffered individually.”

13

14 Because Maldonado-Luna failed to demonstrate past

15 persecution, he was not entitled to a statutory presumption

16 of a likelihood of future persecution and thus needed to

17 establish that he would more likely than not face persecution

18 on account of a protected ground were he forced to return to

19 Mexico. See

(b)(1)(i), (2). But

20 Maldonado-Luna did not establish that the destruction of his

21 home during a hurricane, the conning of his wife, or the

22 murder of his niece posed a future risk to him personally or

23 occurred on account of his ethnicity. Those incidents 4 1 therefore did not support a finding of likely persecution on

2 account of a protected ground. 1 See id.; Jian Xing Huang v.

3 U.S. INS,

(2d Cir. 2005). In addition,

4 Maldonado-Luna failed to show that it was more likely than

5 not that he would be subject to economic persecution in the

6 future, both because the record showed that he had been able

7 to work in Mexico in the past and because he failed to provide

8 evidence of his family’s current economic situation. See

9 Jian Xing Huang,

; Guan Shan Liao, 293 F.3d at

10 70. We therefore conclude that the agency did not err in

11 determining that Maldonado-Luna was ineligible for

12 withholding of removal.

13 For the foregoing reasons, the petition for review is

14 DENIED. All pending motions and applications are DENIED and

15 stays VACATED.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court

1We decline to consider Maldonado-Luna’s argument that he established a pattern or practice of persecution against Mixtecs – the indigenous community in Mexico to which he belonged – because he failed to exhaust the issue before the agency. See Lin Zhong v. U.S. Dep’t of Just.,

, 119–22 (2d Cir. 2007). 5