20-610 Perez-Rojas v. Garland BIA Ruehle, IJ A205 702 340

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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 14th day of March, two thousand 4 twenty-two. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 RICHARD J. SULLIVAN, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 TIBURCIO PEREZ-ROJAS, 14 Petitioner, 15 16 v. 20-610 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 1 2 FOR PETITIONER: Jose Perez, Esq., Syracuse, NY. 3 4 FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant 5 Attorney General; Cindy S. Ferrier, 6 Assistant Director; Sunah Lee, Trial Attorney, 7 Office of Immigration Litigation, United 8 States Department of Justice, Washington, 9 DC.

10 UPON DUE CONSIDERATION of this petition for review of a Board of

11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

12 DECREED that the petition for review is DENIED.

13 Petitioner Tiburcio Perez-Rojas, a native and citizen of Mexico, seeks review

14 of a January 15, 2020 decision of the BIA affirming an April 12, 2018 decision of an

15 Immigration Judge (“IJ”) denying asylum, withholding of removal, and protection

16 under the Convention Against Torture (“CAT”). In re Tiburcio Perez-Rojas, No. A

17 205 702 340 (B.I.A. Jan. 15, 2020), aff’g No. A 205 702 340 (Immig. Ct. Buffalo Apr.

18 12, 2018). We assume the parties’ familiarity with the underlying facts and

19 procedural history.

20 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan

21 Chen v. Gonzales,

(2d Cir. 2005). As an initial matter, Perez-

22 Rojas’s claim that his asylum application was timely is unexhausted because he

2 1 failed to challenge the IJ’s finding that his application was time-barred before the

2 BIA. See Karaj v. Gonzales,

, 119–20 (2d Cir. 2006) (holding that the

3 Court lacked jurisdiction to consider claims that were not exhausted on appeal to

4 the BIA). Accordingly, we review only the denial of withholding of removal and

5 CAT relief. As to those remaining claims, we review questions of law de novo,

6 see Paloka v. Holder,

(2d Cir. 2014), and we review findings of fact

7 for substantial evidence, treating the agency’s factual findings as “conclusive

8 unless any reasonable adjudicator would be compelled to conclude to the

9 contrary.”

(b)(4)(B).

10 An applicant for withholding of removal has the burden to show that he

11 will more likely than not be persecuted because of “race, religion, nationality,

12 membership in a particular social group, or political opinion.” 8 U.S.C.

13 § 1231(b)(3);

(b)(1); see Wei Sun v. Sessions,

, 27–28 (2d

14 Cir. 2018) (“Eligibility for withholding of removal requires a clear probability of

15 persecution, i.e., it is more likely than not that the alien would be subject to

16 persecution.” (ellipsis and internal quotation marks omitted)). “In the absence of

17 solid support in the record . . . [an applicant’s] fear is speculative at best.” Jian

18 Xing Huang v. U.S. INS,

(2d Cir. 2005).

3 1 Perez-Rojas alleged that he would be persecuted or killed by gangs in

2 Mexico because his father had been threatened and his cousin had been killed.

3 He testified that his father heard rumors from neighbors that he might be

4 kidnapped since Perez-Rojas had sent money to his father while he was working

5 in the United States, leading people to believe that Perez-Rojas would be able to

6 pay a ransom. However, his father never reported any threats to the police, never

7 received any direct threats (oral, written, or otherwise), and does not know the

8 identity of the persons who are rumored to have threatened him. Although

9 Perez-Rojas thought it possible that a gang was behind the threats, the agency

10 reasonably concluded that this fear was speculative absent direct threats or any

11 harm to Perez-Rojas’s father. See Wei Sun, 883 F.3d at 27–28; Jian Xing Huang, 421

12 F.3d at 129.

13 Perez-Rojas also asserted that he feared returning to Mexico because he

14 believed he would be murdered by gang members. He asserted that his cousin

15 was murdered when he returned to Mexico after living for an extended time in the

16 United States. But Perez-Rojas had no evidence that his cousin was murdered,

17 who killed him, or why; his cousin’s death therefore does not provide solid

18 support for his fear of harm. See Jian Xing Huang,

. Moreover, to

4 1 the extent that Perez-Rojas asserts a fear of harm on account of his perceived

2 wealth and general crime conditions in Mexico, he has not stated a valid ground

3 for withholding of removal. See Ucelo-Gomez v. Mukasey,

, 72–73 (2d

4 Cir. 2007) (rejecting a particular social group defined as “affluent Guatemalans”

5 because “wealth or affluence is simply too subjective, inchoate, and variable to

6 provide the sole basis for membership in a particular social group.” (internal

7 quotation marks omitted)); Melgar de Torres v. Reno,

(2d Cir. 1999)

8 (“a well-founded fear of persecution must be on account of an enumerated ground

9 set forth in the Act, and general crime conditions are not a stated ground”).

10 Perez-Rojas also failed to establish a clear probability of harm by the police

11 or his uncle. See Wei Sun, 883 F.3d at 27–28. He testified that he believed the

12 police collude with gangs and harass people for money; his sister testified that she

13 feared an uncle who tried to abuse her might seek vengeance on Perez-Rojas. But

14 again, Perez-Rojas could point to no objective evidence in the record to suggest

15 that the police would target Perez-Rojas or that his uncle had any intent to harm

16 him. See Jian Xing Huang,

.

17 In sum, Perez-Rojas did not establish that he would “more likely than not”

18 be persecuted.

(b)(2). This finding is dispositive of both

5 1 withholding of removal and protection under the CAT because, to succeed on a

2 CAT claim, an applicant must show he will more likely than not be tortured. See

3

(c); Lecaj v. Holder,

, 119–20 (2d Cir. 2010).

4 For the foregoing reasons, the petition for review is DENIED. All pending

5 motions and applications are DENIED and stays VACATED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court

6