         12-1
         Ochoa Vasquez v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A097 516 990
                                   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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of March, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                ROBERT D. SACK,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _______________________________________
12
13       JOEL ALEXANDER OCHOA VASQUEZ,
14                Petitioner,
15
16                          v.                                  12-1
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                    Sandra P. Nichols, New York, NY.
24
25       FOR RESPONDENT:                    Stuart F. Delery, Acting Assistant
26                                          Attorney General; David V. Bernal,
27                                          Assistant Director; Tiffany L.
28                                          Walters, Trial Attorney, Office of
29                                          Immigration Litigation, United
30                                          States Department of Justice,
31                                          Washington, D.C.
 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       Joel Alexander Ochoa Vasquez, a native and citizen of

 6   El Salvador, seeks review of a December 6, 2011, order of

 7   the BIA affirming the July 16, 2010, decision of Immigration

 8   Judge (“IJ”) Steven R. Abrams, which denied his application

 9   for asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).    In re Joel Alexander

11   Ochoa Vasquez, No. A097 516 990 (B.I.A. Dec. 6, 2011), aff’g

12   No. A097 516 990 (Immig. Ct. N.Y. City July 16, 2010).       We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented by the BIA.     See Yan

17   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The

18   applicable standards of review are well-established.     See

19   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20   Because Vasquez does not challenge the denial of CAT relief

21   we address only asylum and withholding of removal.

22       Vasquez’s claim for relief centered on a murder that

23   Vasquez asserts was perpetrated at his house by his nephew

                                  2
 1   and other gang members with ties to El Salvador, and his

 2   assertion that the gang believes he knows details about the

 3   murder and is cooperating with the police.   When, as here,

 4   an alien does not rely on a claim of past persecution, he

 5   can demonstrate his eligibility for relief by demonstrating

 6   that there is an objectively reasonable basis for fearing

 7   that: (1) he will be persecuted; and (2) he will be targeted

 8   for that persecution on account of a protected ground, which

 9   includes a particular social group.   See 8 U.S.C.

10   § 1101(a)(42).   As the agency reasonably found, Vasquez

11   failed to establish that he would be persecuted on account

12   of his membership in a particular social group, which he

13   defines to be “young men to whom gang members imputed

14   knowledge of their criminal activities and cooperation with

15   the police.”

16       The agency reasonably found that Vasquez’s fear of

17   persecution was not objectively reasonable because he did

18   not proffer evidence that: (1) his nephew was a member of a

19   gang with ties to El Salvador, merely assuming that he was a

20   gang member based on his hairstyle and clothing; (2) the

21   anonymous callers who threatened him were members of a gang

22   with ties to El Salvador; (3) the perpetrators of the murder


                                   3
 1   would have perceived him to have knowledge of the murder

 2   when he would not have seen the perpetrators on the night

 3   the murder allegedly occurred and the body of the murder

 4   victim was not found at his house; and (4) the perpetrators

 5   would not have perceived him to be cooperating with the

 6   police when he was interrogated only briefly soon after the

 7   murder victim disappeared and he did not receive any threats

 8   during the year prior to his merits hearing.       Accordingly,

 9   the agency reasonably found that Vasquez had failed to show

10   that his fear of persecution was objectively reasonable.

11   See 8 C.F.R. §§ 1208.13(b)(2), 1208.16(b)(2); Jian Xing

12   Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that

13   a fear is not objectively reasonable if it lacks “solid

14   support” in the record and is merely “speculative at best”).

15       Vasquez argues that the BIA erred by finding that the

16   social group he defined was not socially visible.       However,

17   the BIA made no such finding.       Rather, the BIA assumed that

18   the group Vasquez defined was cognizable, and found that he

19   failed to establish a nexus between the harm he feared and

20   his membership in a particular social group or any other

21   protected ground.   That finding also is supported by

22   substantial evidence.   Initially, given the BIA’s assumption


                                     4
 1   that there was a cognizable group, the BIA’s finding that

 2   the callers were not motivated by Vasquez’s membership in

 3   the group ignores the group’s definition—men who are imputed

 4   knowledge of the gang’s criminal activity and are

 5   cooperating with police—which necessarily requires that the

 6   prime motivation for targeting Vasquez was to avoid

 7   prosecution.   Despite this contradiction, the agency

 8   reasonably found that Vasquez failed to establish a nexus

 9   because: (1) in El Salvador, it is unlikely that the gang

10   would perceive Vasquez as a threat because he could no

11   longer participate in any prosecution; and (2) Vasquez

12   testified that neither he nor his family in the United

13   States or El Salvador had been threatened in over a year.

14       Because Vasquez failed to show an objectively

15   reasonable fear that he would be persecuted on account of

16   his membership in the alleged social group, the agency did

17   not err in concluding that he did not establish eligibility

18   for asylum, and that he necessarily failed to satisfy the

19   higher standard required to succeed on a claim for

20   withholding of removal.   See 8 U.S.C. § 1101(a)(42); Paul v.

21   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

22       For the foregoing reasons, the petition for review is

23   DENIED.   As we have completed our review, any stay of
                                   5
1   removal that the Court previously granted in this petition

2   is VACATED, and any pending motion for a stay of removal in

3   this petition is DISMISSED as moot. Any pending request for

4   oral argument in this petition is DENIED in accordance with

5   Federal Rule of Appellate Procedure 34(a)(2), and Second

6   Circuit Local Rule 34.1(b).

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




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