22-6408 Choc Caal v. Garland BIA Driscoll, IJ A216 649 808

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of April, two thousand twenty- four.

PRESENT: JOHN M. WALKER, JR., RICHARD J. SULLIVAN, BETH ROBINSON, Circuit Judges. _____________________________________

MARCOS CHOC CAAL, Petitioner,

v. 22-6408 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Ilana R. Herr, Anna Alexandra Mintz, American Friends Service Committee, Newark, NJ. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Brendan Paul Hogan, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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 Marcos Choc Caal, a native and citizen of Guatemala, seeks

review of a July 29, 2022 decision of the BIA affirming a February 11, 2022 decision

of an Immigration Judge (“IJ”), which denied his application for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Marcos Choc Caal, No. A216 649 808 (B.I.A. July 29, 2022), aff’g No.

A216 649 808 (Immigr. Ct. Batavia Feb. 11, 2022). We assume the parties’

familiarity with the underlying facts and procedural history.

We review the IJ’s decision as modified by the BIA – i.e., minus the grounds

for denying relief upon which the BIA did not rely. See Xue Hong Yang v. U.S.

Dep’t of Just.,

(2d Cir. 2005). Choc Caal has abandoned any

challenge to the agency’s denial of his application for asylum as untimely by not

raising this issue in his brief, so we consider only his withholding of removal and

CAT claims. See Debique v. Garland,

(2d Cir. 2023) (“We consider

2 abandoned any claims not adequately presented in an appellant’s brief, and an

appellant’s failure to make legal or factual arguments constitutes abandonment.”

(internal quotation marks omitted)). We review the agency’s factual findings

under the substantial evidence standard, and review questions of law and the

application of law to fact de novo. See Yanqin Weng v. Holder,

(2d Cir. 2009). “[T]he administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.”

(b)(4)(B).

In his application, Choc Caal asserted that he and other indigenous children

were harassed and beaten by older children at school. He represented that,

although the teachers punished the students, those students would retaliate and

beat up the indigenous students for reporting them. As an adult, he had difficulty

finding employment. Unable to find work, he enlisted in the Guatemalan army

in 2012 at the age of 19 and was assigned to a brigade that targeted narcotics

traffickers. In 2013, a former soldier purportedly told him the cartel would kill

him and his family if he refused to desert the army and join the traffickers. Choc

Caal agreed to do so, but only after he finished his term of service. When his term

ended, he instead went into hiding and then came to the United States.

Traffickers thereafter allegedly went to his father’s house and asked about Choc

3 Caal’s whereabouts. And the former soldier who had tried to recruit him reached

out via Facebook and told Choc Caal that they would look for him. He feared

traffickers would kill him for refusing recruitment or target him because of his

military experience. He believed the traffickers would be able to find him

because local officials are corrupt and he would be required to register with local

authorities wherever he were to live in Guatemala.

To qualify for withholding of removal, an applicant must establish past

persecution or that he will “more likely than not” be persecuted,

(b)(1), (2), and that such persecution was, or will be, because of the

applicant’s “race, religion, nationality, membership in a particular social group, or

political opinion,”

(b)(3)(A). A CAT applicant must show that he

will “more likely than not” be tortured if removed.

(c)(2).

Here, the agency reasonably concluded that Choc Caal did not suffer harm rising

to the level of persecution and that he did not establish that he would more likely

than not be persecuted or tortured in the future.

I. Past Persecution

A past persecution claim can be based on harm other than threats to life or

freedom, including “non-life-threatening violence and physical abuse,” Beskovic v.

Gonzales,

, 226 n.3 (2d Cir. 2006), but the harm must be sufficiently

4 severe, rising above “mere harassment,” Ivanishvili v. U.S. Dep’t of Just.,

(2d Cir. 2006). The agency must consider the past harm suffered in the

aggregate. See Poradisova v. Gonzales,

, 79–80 (2d Cir. 2005).

First, Choc Caal testified that he was “mistreated” at school because he was

indigenous and did not speak Spanish. Certified Admin. Record at 208. The IJ

reasonably concluded that these “schoolyard incidents” did not rise to the level of

persecution and noted Choc Caal’s testimony that the teachers intervened to stop

this bullying.

; see also Mei Fun Wong v. Holder,

(2d Cir.

2011) (“[P]ersecution is an extreme concept that does not include every sort of

treatment our society regards as offensive.” (internal quotation marks omitted)).

Second, Choc Caal’s contention that there were “not many opportunities for

indigenous people,” Certified Admin. Record at 316, without more, did not

demonstrate harm rising to the level of persecution. See Guan Shan Liao v. U.S.

Dep’t of Just.,

, 70 (2d Cir. 2002) (“recogniz[ing] that economic

deprivation may constitute persecution, [but] an asylum applicant must offer

some proof that he suffered a deliberate imposition of substantial economic

disadvantage” (internal quotation marks omitted)).

Finally, the agency did not err in finding that Choc Caal’s experiences with

narcotics traffickers did not rise to the level of persecution. We have held that

5 “unfulfilled threats alone generally do not rise to the level of persecution.”

Scarlett v. Barr,

(2d Cir. 2020) (alterations incorporated and

internal quotation marks omitted). “To warrant a different conclusion, an

applicant must adduce objective evidence that the threat was so imminent or

concrete or so menacing as itself to cause actual suffering or harm.”

(citations

and internal quotation marks omitted). Here, the agency reasonably concluded

that Choc Caal did not meet his burden of demonstrating that the threats were

sufficiently imminent, concrete, or threatening. Indeed, he offered no evidence

that the traffickers took any steps to act on their threats against him or harmed

anyone else who refused to obey their commands, or that he was harmed when he

refused to join before he completed his full term with the army. See id.; see also

Secaida-Rosales v. INS,

, 303–05 (2d Cir. 2003) (remanding where

applicant received four death threats and was hit by a car and severely injured,

followed by a threat that he “would not be so lucky a second time”), superseded by

statute on other grounds as stated in Xiu Xia Lin v. Mukasey,

, 163–64 (2d

Cir. 2008).

Choc Caal argues that the agency failed to consider the harm described

above in the aggregate. We disagree. The IJ evaluated the various harms Choc

Caal asserted, including the childhood incidents related to his indigenous

6 background and the threats he received before and after leaving Guatemala.

While the IJ did not expressly state that the purported harms taken together did

not rise to the level of persecution, we “presume that an IJ has taken into account

all of the evidence before him, unless the record compellingly suggests otherwise.”

Xiao Ji Chen v. U.S. Dep’t of Just.,

, 336 n.17 (2d Cir. 2006). Moreover,

the BIA considered Choc Caal’s arguments about aggregate harm and concluded

that he had not established past persecution. Choc Caal has not established that

this ruling was erroneous. As discussed above, the agency reasonably concluded

that the threats were not sufficiently imminent, concrete, or severe. With regard

to Choc Caal’s claims regarding his experiences in childhood, the IJ specifically

noted Choc Caal’s testimony that teachers intervened in the bullying in concluding

that this mistreatment merely amounted to a series of schoolyard incidents.

There was no evidence that the bullying would meet the definition of

persecution—that is, harm by state actors or by private actors that the state is

“unable or unwilling to control.” Scarlett,

(internal quotation

marks omitted). Nor has Choc Caal offered any evidence of deliberate economic

harm, acknowledging that he found employment in the military. See Guan Shan

Liao, 293 F.3d at 70.

7 II. Future Persecution or Torture

Having failed to establish past persecution, Choc Caal had the burden to

“demonstrate a clear probability of future persecution,” meaning that it was “more

likely than not” that he would be persecuted in the future. Jian Liang v. Garland,

(2d Cir. 2021) (internal quotation marks omitted); see also

(b)(2). An applicant can establish a clear probability of future

persecution either by showing that he would be “singled out” for persecution,

(b)(2), or that the country of removal has a “pattern or practice”

of persecuting “similarly situated” people,

§ 1208.16(b)(2)(i). Choc Caal’s

future-persecution claim is based on his fear of retaliation or recruitment attempts

from cartels because of his military background.

The record supports the agency’s determination that Choc Caal failed to

establish a clear probability of future persecution. Choc Caal argues that the

agency ignored country conditions evidence reflecting a pattern or practice of

persecution against former soldiers in Guatemala. But the IJ clearly reviewed the

country conditions evidence, noting that the report stating that cartels had been

recruiting Guatemalan soldiers only “goes through March of 2012” and that,

because the removal hearing occurred in 2022, the report was “of little use given

its age.” Certified Admin. Record at 77–78. Notably, while the report notes

8 widespread gang violence, it does not state that soldiers were routinely killed for

refusing to join gangs or cartels. Further, Choc Caal has not identified country

conditions evidence to support his contention that the cartels currently target

former soldiers for recruitment or harm them if they refuse to join. On this

record, Choc Caal failed to establish that his fear based on recruitment by the

cartels was more than speculative. See Singh v. Garland,

, 116–17 (2d

Cir. 2021) (“General country-conditions evidence does not on its own compel the

conclusion that an individual will be persecuted or that internal relocation is

insufficient to avert persecution.”).

Choc Caal also challenges the agency’s reliance on the fact that his family

remains unharmed in Guatemala. While it is true that his family members may

not be similarly situated to Choc Caal insofar as they are not former members of

the military, he nonetheless claimed that the cartel threatened to harm them. The

absence of such harm and the lack of continued threats against his family

undercuts the objective reasonableness of his fear that the cartel will follow

through on past threats. See Melgar de Torres v. Reno,

(2d Cir.

1999) (explaining that the absence of evidence of persecution of family members

located in the country of removal “cuts against” finding a fear of future

persecution).

9 Finally, the agency did not err in also relying on Choc Caal’s ability to

relocate within Guatemala. “In cases in which the applicant has not established

past persecution, the applicant shall bear the burden of establishing that it would

not be reasonable for him . . . to relocate, unless the persecutor is a government or

is government-sponsored.”

(b)(3)(i). Choc Caal testified that

he would have to register with the local mayor wherever he relocated, and the

government is corrupt and would give his location to the cartel. However, while

the country conditions evidence reflects widespread corruption, it does not

discuss specific cooperation between local officials and narcotics traffickers or

report efforts of local officials to identify former military members for the cartels.

Given the burden on Choc Caal to demonstrate by a preponderance of the

evidence that he could not safely relocate within Guatemala, the absence of

evidence is dispositive. See

§ 1208.16(b)(3); see also Jian Hui Shao v. Mukasey,

, 157–58 (2d Cir. 2008) (“[W]hen a petitioner bears the burden of proof,

his failure to adduce evidence can itself constitute the ‘substantial evidence’

necessary to support the agency’s challenged decision.”).

In sum, the agency reasonably found that Choc Caal failed to establish that

he would “more likely than not” be persecuted as he presented no evidence that

former soldiers are targeted for refusing to join the cartel, and neither he nor his

10 family have been contacted since 2015.

(b)(2); see Jian Xing

Huang v. INS,

(2d Cir. 2005) (absent “solid support in the record,”

an applicant’s fear of future persecution is “speculative at best”). Choc Caal’s

failure to establish a clear probability of future harm is dispositive of both

withholding of removal and CAT relief. See

(c)(2); Lecaj v.

Holder,

, 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.

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

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