     17-429
     Coello-Mutate v. Barr
                                                                                    BIA
                                                                               Straus, IJ
                                                                       A206 480 524/525
                             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 1st day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            GERARD E. LYNCH,
 8            CHRISTOPHER F. DRONEY,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   BETI MARLEN COELLO-MUTATE,
14   CRISTIAN NORBEY MENDEZ-COELLO,
15            Petitioners,
16
17                     v.                                        17-429
18                                                               NAC
19   WILLIAM P. BARR,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                    Milagros S. Cruz, Hartford, CT.
25
26   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
27                                      Attorney General; Stephen J.
28                                      Flynn, Assistant Director; Kathryn
29                                      M. McKinney, Trial Attorney,
30                                      Office of Immigration Litigation,
31                                      United States Department of
32                                      Justice, Washington, DC.
33
1          UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review

4    is DENIED.

5          Petitioners   Beti   Marlen      Coello-Mutate   and    Cristian

6    Norbey Mendez-Coello, natives and citizens of Honduras, seek

7    review of a January 26, 2017 decision of the BIA affirming a

8    March 15, 2016 decision of an Immigration Judge (“IJ”) denying

9    their applications for asylum, withholding of removal, and

10   relief under the Convention Against Torture (“CAT”).             In re

11   Beti Marlen Coello-Mutate and Cristian Norbey Mendez-Coello,

12   No. A 206 480 524/525 (B.I.A. Jan. 26, 2017), aff’g No. A 206

13   480 524/525 (Immig. Ct. Hartford Mar. 15, 2016).             We assume

14   the   parties’   familiarity    with    the   underlying     facts   and

15   procedural history in this case.

16         Under the circumstances of this case, we have reviewed

17   the IJ’s decision as modified by the BIA, i.e., minus the

18   social group and nexus determinations that the BIA did not

19   reach.   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

20   520, 522 (2d Cir. 2005).       We review the agency’s findings of

21   fact under the substantial evidence standard, treating such

22   findings as “conclusive unless any reasonable adjudicator
                                       2
 1   would be compelled to conclude to the contrary.”        Hong Fei

 2   Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (quoting 8

 3   U.S.C. §1252(b)(4)(B)).

 4       To establish asylum eligibility, an applicant must show

 5   that she has suffered past persecution, or has a well-founded

 6   fear of future persecution, “on account of race, religion,

 7   nationality, membership in a particular social group, or

 8   political   opinion.”     8   U.S.C.   § 1101(a)(42).    If   the

 9   applicant has suffered past persecution, she is “presumed to

10   have a well-founded fear of persecution on the basis of the

11   original claim.”   8 C.F.R. § 1208.13(b)(1).

12   Past Persecution

13       While the Immigration and Nationality Act does not define

14   persecution, see Baba v. Holder, 569 F.3d 79, 85 (2d Cir.

15   2009), the BIA has defined it as a “threat to the life or

16   freedom of, or the infliction of suffering or harm upon, those

17   who differ in a way regarded as offensive.”    Matter of Acosta,

18   19 I. & N. Dec. 211, 222 (BIA 1985), overruled in part on

19   other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);

20   accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332,

21   342 (2d Cir. 2006).     The harm must be sufficiently severe,

22   rising above “mere harassment.”        Ivanishvili, 433 F.3d at
                                     3
1    341; see also Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d

2    Cir. 2011) (“We have emphasized that persecution is an extreme

3    concept that does not include every sort of treatment our

4    society regards as offensive.” (internal quotation marks

5    omitted)).

6           The agency did not err by determining that the threat

7    against Coello-Mutate did not constitute past persecution.

8    Generally, threats alone do not constitute past persecution.

9    See Gui Ci Pan v. U.S. Att’y General, 449 F.3d 408, 412-13

10   (2d Cir. 2006); Guan Shan Liao v. U.S. Dep’t of Justice, 293

11   F.3d    61,   70   (2d   Cir.      2002)       (stating    that   a    “threat   of

12   detention . . . itself . . . is not past persecution”).

13   Coello-Mutate argues that the threat rose to the level of

14   persecution        because    it    caused        her     psychological       harm.

15   However,      in    holding     that       harm    must    rise       above   “mere

16   harassment” in order to constitute persecution, we have noted

17   that    the   definition      of    harassment       includes     actions      that

18   cause,     inter      alia,     “substantial            emotional       distress.”

19   Ivanishvili, 433 F.3d at 341 (citation omitted). Because a

20   reasonable adjudicator would not be compelled to conclude

21   that Coello-Mutate suffered psychological harm rising to

22   persecution, the agency did not err in determining that
                                                4
1    Coello-Mutate failed to establish past persecution.

2    Future Persecution

3        Absent a finding of past persecution, an applicant may

4    establish   asylum    eligibility    based   on     a    fear   of   future

5    persecution,    but     the   applicant      must       show    that     she

6    “subjectively   fears    persecution”     and     that    her    “fear   is

7    objectively reasonable.”      Ramsameachire v. Ashcroft, 357 F.3d

8    169, 178 (2d Cir. 2004).       A fear is objectively reasonable

9    “even if there is only a slight, though discernible, chance

10   of persecution.”      Diallo v. INS, 232 F.3d 279, 284 (2d Cir.

11   2000) (citing Cardoza-Fonseca, 480 U.S. at 431).                But a fear

12   is not objectively reasonable if it lacks “solid support” in

13   the record and is merely “speculative at best.”                 Jian Xing

14   Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).                 The agency

15   did not err in determining that Coello-Mutate did not have an

16   objectively reasonable fear of future persecution.

17       First, there was no substantial evidence that Elim, the

18   man who allegedly threatened Coello-Mutate in 2013, still

19   intends to harm her.     Coello-Mutate did not allege any direct

20   threats to her since Elim’s release, noting only one threat

21   against her brother.      See Jian Xing Huang, 421 F.3d at 129.

22   Second, because there is evidence that Elim could have sent
                                      5
1    another person to harm Coello-Mutate while he was in prison,

2    the agency did not err in relying on the fact that Coello-

3    Mutate was not harmed before she left Honduras for the United

4    States in finding that her fear of future persecution was not

5    objectively reasonable.       Third, Coello-Mutate’s children and

6    other family members remain unharmed in Honduras.                  This

7    absence of harm or threats is relevant to Coello-Mutate’s

8    claim of objective fear.          See Melgar de Torres v. Reno, 191

9    F.3d    307,   313   (2d   Cir.   1999)   (holding   that   a   fear   of

10   persecution     is   undermined    when   similarly-situated     family

11   members remain unharmed in native country). Id.

12          In sum, because there is no “solid support in the record”

13   that Elim intends to harm Coello-Mutate, the agency did not

14   err in finding that she failed to establish an objectively

15   reasonable fear of future persecution.          See Jian Xing Huang,

16   421 F.3d at 129.      Coello-Mutate’s failure to meet her burden

17   for asylum is also dispositive of withholding of removal.

18   Ramsameachire, 357 F.3d at 183.

19   CAT

20          Although the above analysis is equally dispositive of

21   the CAT claim, we address the claim separately because the

22   agency denied CAT relief based on Coello-Mutate’s failure to
                                         6
1    establish that the Honduran authorities would acquiesce in

2    her torture.         An applicant for CAT relief must show that it

3    is “more likely than not” that she will be tortured.                          See 8

4    C.F.R. § 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161,

5    168 (2d Cir. 2004).                To constitute torture under the CAT, the

6    harm must be “inflicted by or at the instigation of or with

7    the consent or acquiescence of a public official or other

8    person     acting         in       an   official     capacity.”        8   C.F.R.

9    § 1208.18(a)(1).           “Acquiescence of a public official requires

10   that the public official, prior to the activity constituting

11   torture,      have    awareness         of   such    activity   and    thereafter

12   breach his or her legal responsibility to intervene to prevent

13   such activity.”           8 C.F.R. § 1208.18(a)(7).

14          The agency did not err in determining that Coello-Mutate

15   did not demonstrate that she would be tortured by or with the

16   acquiescence         of        a    public       official.      See    8      C.F.R.

17   § 1208.18(a)(1).           The record does not establish that Elim was

18   released after being convicted of murder because of the

19   involvement of corrupt government officials.                      And the fact

20   that    the    Honduran            government     cooperated    with    the    U.S.

21   government in having Elim extradited or deported to Honduras

22   and then convicted him of murder weighs against a finding
                                                  7
1   that authorities would acquiesce in any harm to Coello-

2   Mutate.

3       For the foregoing reasons, the petition for review is

4   DENIED.

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




                               8
