     17-1560
     Santos-Garcia v. Barr
                                                                                   BIA
                                                                              Weisel, IJ
                                                                       A206 793 723/724

                             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 14th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   NORMA ELOGIA SANTOS-GARCIA,
14   SHELSON EDUARDO MELENDEZ-SANTOS,
15            Petitioners,
16
17                      v.                                       17-1560
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24
25   FOR PETITIONERS:                   Heather Y. Axford, Central
26                                      American Legal Assistance,
27                                      Brooklyn, NY.
28
29   FOR RESPONDENT:                    Joseph H. Hunt, Assistant
30                                      Attorney General; Nelle M.
31                                      Seymour, Trial Attorney, Office of
32                                      Immigration Litigation, United
1                                        States Department of Justice,
2                                        Washington, DC.
3
4          UPON DUE CONSIDERATION of this petition for review of a

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

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

7    is DENIED.

8          Petitioners       Norma   Elogia        Santos-Garcia       and     her   son,

9    Shelson Eduardo Melendez-Santos, natives                        and citizens of

10   Honduras, seek review of an April 12, 2017, decision of the

11   BIA affirming a July 29, 2016, decision of an Immigration

12   Judge (“IJ”) denying Santos-Garcia’s application for asylum,

13   withholding     of     removal,     and       relief    under    the    Convention

14   Against Torture (“CAT”).            In re Norma Elogia Santos-Garcia,

15   Shelson      Eduardo    Melendez-Santos,          Nos.    A 206     793    723/724

16   (B.I.A. Apr. 12, 2017), aff’g Nos. A 206 793 723/724 (Immig.

17   Ct.   N.Y.    City     July   29,   2016).         We    assume    the    parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20         Under the circumstances of this case, we have considered

21   the entirety of the IJ’s decision as well as the BIA’s

22   additional statement regarding social group.                       See Ming Xia

23   Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006); Yan Chen v.

24   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).                       The applicable

                                               2
1    standards of review are well established.                   See 8 U.S.C.

2    § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.

3    2014)(reviewing factual findings for substantial evidence and

4    questions of law and application of law to fact de novo).

5           To demonstrate eligibility for asylum and withholding

6    of removal, an “applicant must establish that race, religion,

7    nationality, membership in a particular social group, or

8    political opinion was or will be at least one central reason

9    for       persecuting       the         applicant.”             8 U.S.C.

10   § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Matter of

11   C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010).             An applicant

12   who has not suffered past harm must establish a well-founded

13   fear    of   future     persecution,      which    is   a    “reasonable

14   possibility of future persecution” for asylum and a “clear

15   probability”    of    persecution   in    the     withholding   context.

16   Hongsheng Leng v. Mukasey, 528 F.3d 135, 140, 143 (2d Cir.

17   2008) (quoting Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554, 565

18   (2d Cir. 2006)).

19          Santos-Garcia asserts that the agency erred in finding

20   that she failed to establish past persecution.                   We can

21   identify no error in the agency’s decision because Santos-

22   Garcia was not harmed or threatened by the gang and any harm


                                         3
1    to her husband is not past persecution of her.    See Tao Jiang

2    v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007) (“As a general

3    principle, an asylum applicant cannot claim past persecution

4    based solely on harm that was inflicted on a family member on

5    account of that family member’s political opinion or other

6    protected characteristic.”).

7         Absent past persecution, Santos-Garcia had the burden to

8    show an “objectively reasonable” fear that she would be harmed

9    in   the   future   on   account   of   a   protected   ground.

10   Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

11   To be objectively reasonable, a fear must be more than

12   speculative.   See Jian Xing Huang v. U.S. INS, 421 F.3d 125,

13   129 (2d Cir. 2005) (“In the absence of solid support in the

14   record . . . [a] fear is speculative at best.”).    As Santos-

15   Garcia argues, the IJ used the clear probability and well-

16   founded fear standards interchangeably.     Although the agency

17   errs if it applies the wrong standard, the IJ’s decision as

18   a whole does not support a conclusion that the wrong standard

19   was applied: the IJ set out the well-founded fear standard

20   initially and ultimately concluded that Santos-Garcia had not

21   shown a well-founded fear of persecution.     Moreover, as the

22   IJ found there was no evidence to support Santos-Garcia’s


                                    4
1    claim as neither she nor her husband were harmed, she was not

2    directly threatened, and she did not allege that the gang

3    knew of her existence.         See Guan Shan Liao v. U.S. Dep’t of

4    Justice, 293 F.3d 61, 68-69 (2d Cir. 2002) (concluding that

5    BIA did not apply a more stringent burden of proof than a

6    well-founded fear because its language that an applicant had

7    not shown “that he would be subject to persecution upon his

8    return to China . . . simply fault[ed] the applicant for

9    failing    to   show    that   any     of       [his]   actions    would   even

10   potentially subject [him] to persecution upon his return to

11   China”).

12        Because these findings are dispositive of asylum and

13   withholding     of     removal,   we       do    not    reach   the   agency’s

14   alternative findings whether Santos-Garcia’s social groups

15   were cognizable or whether she could show a nexus between her

16   alleged fear and those grounds.                 See INS v. Bagamasbad, 429

17   U.S. 24, 25 (1976) (“As a general rule courts and agencies

18   are not required to make findings on issues the decision of

19   which is unnecessary to the results they reach.”).                    We note,

20   however, that that BIA’s reasoning is unclear.                    To the extent

21   that the BIA stated that membership in a family cannot, as a

22   matter of law, constitute a particular social group, it


                                            5
1    misstates the law.      See Vumi v. Gonzales, 502 F.3d 150, 155

2    (2d Cir. 2007); see also Matter of L-E-A-, 27 I. & N. Dec.

3    40, 42-43 (B.I.A. 2017), held pending further review by the

4    U.S. Att’y Gen., 27 I. & N. Dec. 494 (A.G. 2018).

5           Because the BIA denied CAT relief for the reasons given

6    by the IJ, we have reviewed the IJ’s decision.          See Ming Xia

7    Chen, 435 F.3d at 144.      An applicant for CAT relief must show

8    that “it is more likely than not that . . . she would be

9    tortured.”     8 C.F.R. § 1208.16(c)(2).      Although there is no

10   protected ground requirement for CAT relief, Santos-Garcia’s

11   CAT claim fails for the same reasons as asylum and withholding

12   of removal: she did not establish the required fear of future

13   harm.    See Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir.

14   2010) (holding that failure to show possibility of future

15   harm    for   asylum   means    applicant   “necessarily   fails   to

16   demonstrate” the higher standard for withholding of removal

17   and CAT relief).       Santos-Garcia asserts that the IJ ignored

18   country conditions evidence demonstrating that the Honduran

19   government    acquiesces   in    torture.    However,   her   country

20   conditions evidence did not demonstrate that an individual in

21   her “particular alleged circumstances” would more likely than

22   not be tortured, or that the government would acquiesce in


                                        6
1   her torture.   Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d

2   Cir. 2003).

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




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