     18-2363
     Guaman Minchala v. Barr
                                                                                    BIA
                                                                               Straus, IJ
                                                                           A206 372 568

                               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 22nd day of October, two thousand nineteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            SUSAN L. CARNEY,
 9            MICHAEL H. PARK,
10                 Circuit Judges.
11   _____________________________________
12
13   STALIN GUAMAN MINCHALA, AKA
14   CESAR ARMANDO RAMOS,
15            Petitioner,
16
17                    v.                                         18-2363
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                      Glenn L. Formica, New Haven, CT.
25
26   FOR RESPONDENT:                      Joseph H. Hunt, Assistant
27                                        Attorney General; Anthony P.
28                                        Nicastro, Assistant Director;
29                                        Ilana J. Snyder, Trial Attorney,
30                                        Office of Immigration Litigation,
31                                        United States Department of
32                                        Justice, Washington, DC.
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          Petitioner Stalin Guaman Minchala, a native and citizen

6    of Ecuador, seeks review of a July 11, 2018, decision of the

7    BIA affirming a September 7, 2017, decision of an Immigration

8    Judge    (“IJ”)   denying    Guaman      Minchala’s     application    for

9    asylum,    withholding      of   removal,       and   relief   under   the

10   Convention Against Torture (“CAT”).               In re Stalin Guaman

11   Minchala, No. A 206 372 568 (B.I.A. July 11, 2018), aff’g No.

12   A 206 372 568 (Immig. Ct. Hartford Sept. 7, 2017).              We assume

13   the   parties’    familiarity     with    the    underlying    facts   and

14   procedural history in this case.

15         As an initial matter, we grant Guaman Minchala’s motion

16   for in forma pauperis status and deny the Government’s motion

17   for summary denial because the petition for review is not

18   frivolous.    See Pillay v. INS, 45 F.3d 14, 15-17 (2d Cir.

19   1995).    However, because Guaman Minchala has filed his brief,

20   we treat the Government’s motion as its brief and deny the

21   petition on the merits.
                                         2
1        We have reviewed the IJ’s decision as supplemented by

2    the BIA.   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

3    Cir. 2005).    The applicable standards of review are well

4    established.   See 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder,

5    762 F.3d 191, 195 (2d Cir. 2014) (“[w]e review factual

6    findings under the substantial evidence standard” and review

7    de novo questions of law and the application of law to fact,

8    including the “determination of whether a group constitutes

9    a ‘particular social group’”).

10   Asylum and Withholding of Removal

11       To demonstrate eligibility for asylum and withholding

12   of removal, “the applicant must establish that race,

13   religion, nationality, membership in a particular social

14   group, or political opinion was or will be at least one

15   central reason for persecuting the applicant.”   8 U.S.C.

16   § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); In re C-

17   T-L-, 25 I. & N. Dec. 341, 347-48 (B.I.A. 2010) (applying

18   “one central reason” standard to withholding).   A

19   petitioner has the burden to show either past harm rising

20   to the level of persecution on account of a protected

21   ground or that he has a well-founded fear of future
                                   3
1    persecution on account of a protected ground.                8 U.S.C.

2    §§ 1101(a)(42), 1158(b)(1)(A), (B)(i).

3           The agency did not err in finding no past persecution.

4    Guaman Minchala alleged that his mother’s friends told her

5    that a local gang was abducting children.              To the extent that

6    he   alleged    a    threat,    threats       alone   do   not    constitute

7    persecution.     See Gui Ci Pan v. U.S. Att’y General, 449 F.3d

8    408, 412-13 (2d Cir. 2006) (recognizing that unfulfilled

9    threats alone do not constitute persecution).

10          Nor did the agency err in finding that Guaman Minchala

11   did not establish a well-founded fear of future persecution.

12   To establish asylum eligibility based on future persecution,

13   an applicant must show that he subjectively fears persecution

14   and that his fear is objectively reasonable.                 Ramsameachire

15   v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).                    A fear is

16   objectively reasonable “even if there is only a slight, though

17   discernible, chance of persecution.”             Diallo v. INS, 232 F.3d

18   279, 284 (2d Cir. 2000) (citing INS v. Cardoza-Fonseca, 480

19   U.S.    421,   431   (1987)).     But     a   fear    is   not   objectively

20   reasonable if it lacks “solid support” in the record and is

21   merely “speculative at best.”           Jian Xing Huang v. U.S. INS,
                                         4
1    421 F.3d 125, 129 (2d Cir. 2005).             Guaman Minchala’s fear of

2    exploitation by La Sombra Negra lacked “solid support” in the

3    record.    Id.    He testified that he never had any encounters

4    with any gang members and was never threatened with future

5    harm by anyone in Ecuador.               He also testified that his

6    grandmother informed him that the gang has overtaken large

7    swaths of his hometown of Guapan and is known for harvesting

8    organs, and that he would be forcibly recruited to join the

9    gang as a deportee from the United States.                   But his only

10   evidence of the scale of La Sombra Negra’s influence was an

11   article that addressed the gang’s ascendancy in areas of New

12   York and referenced “homicides and robberies” committed by

13   the gang in Guaman Minchala’s home region of Cañar and the

14   fact that the “gang [wa]s attracting indigenous youths” in

15   Ecuador.   The agency did not err in ruling that this article

16   did not provide “solid support” for Guaman Minchala’s claim

17   that gang members would recruit him based on his youth.                 Id.

18       Accordingly, Guaman Minchala failed to demonstrate an

19   objectively      reasonable   fear       of   future    harm.    8 U.S.C.

20   §§ 1101(a)(42),     1158(b)(1)(A),        (B)(i);      Ramsameachire,   357

21   F.3d at 178.      Because this conclusion is dispositive, we do
                                          5
1    not reach the agency’s alternative ruling that, even assuming

2    an   objectively   reasonable    fear,    Guaman   Minchala       did   not

3    demonstrate that his fear was based on his membership in a

4    cognizable social group.       See INS v. Bagamasbad, 429 U.S. 24,

5    25 (1976) (“As a general rule courts and agencies are not

6    required to make findings on issues the decision of which is

7    unnecessary to the results they reach.”).             Because Guaman

8    Minchala failed to meet his burden of proof for asylum, he

9    necessarily failed to meet the higher burden associated with

10   withholding of removal.        See Huo Qiang Chen v. Holder, 773

11   F.3d 396, 404 (2d Cir. 2014).

12   CAT Protection

13        An applicant for CAT relief must show that it is more

14   likely than not that he will be tortured.               See 8 C.F.R.

15   § 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d

16   Cir. 2004).   To constitute torture under the CAT, the likely

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

18   the consent or acquiescence of a public official or other

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

20   § 1208.18(a)(1).        In assessing the likelihood of torture,

21   “all evidence relevant to the possibility of future torture
                                        6
1    shall be considered, including, but not limited to . . .

2    [e]vidence of past torture,” the possibility of relocation

3    within the country, “[e]vidence of gross, flagrant or mass

4    violations   of   human    rights   .   .   .   and   .   .    .    relevant

5    information regarding conditions in the country of removal.”

6    Id.   § 1208.16(c)(3).      To   meet   his     burden    of       proof,   an

7    applicant for CAT relief must establish that someone in his

8    “particular alleged circumstances” is more likely than not to

9    be tortured in the country designated for removal.                   Mu-Xing

10   Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003).

11         The agency did not err in ruling that Guaman Minchala

12   failed to prove that he would more likely than not face

13   torture in Ecuador.       First, his argument fails for the same

14   reason that his asylum and withholding claims were rejected:

15   he did not establish an objectively reasonable fear of future

16   harm amounting to persecution, let alone torture.                   See Paul

17   v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).                    Second,

18   to the extent his claim is based on additional facts, he

19   testified that his grandmother warned him that gangs were

20   harvesting children’s organs and alleged a likelihood of

21   retaliation for not joining a gang.              None of his country
                                         7
1    conditions evidence, however, describes incidents of organ

2    harvesting in Ecuador or establishes that La Sombra Negra

3    targets children for recruitment with the acquiescence of

4    public officials.    Accordingly, Guaman Minchala provided no

5    evidence   that     someone   in   his   “particular     alleged

6    circumstances” is more likely than not to be tortured.       Mu-

7    Xing Wang, 320 F.3d at 144.

8        For the foregoing reasons, Guaman Minchala’s motion for

9    in forma pauperis status is GRANTED and the Government’s

10   motion for summary denial is DENIED because the petition is

11   not frivolous.    Having construed the Government’s motion as

12   its brief and having completed our review of the merits,

13   however, the petition is DENIED and Guaman Minchala’s motion

14   for a stay of removal is DENIED as moot.   Any pending request

15   for oral argument in this petition is DENIED in accordance

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

17   Circuit Local Rule 34.1(b).

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




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