     16-1474
     Flores Anyosa v. Whitaker

                                      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 for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 17th day of December, two thousand eighteen.
 4
 5   PRESENT:
 6              JON O. NEWMAN,
 7              SUSAN L. CARNEY,
 8              RICHARD J. SULLIVAN,
 9                           Circuit Judges.
10   _________________________________________
11
12   CARLOS AUGUSTO FLORES ANYOSA,
13              Petitioner,
14
15                               v.                                  No. 16-1474
16
17   MATTHEW G. WHITAKER,
18   Acting Attorney General of the United States,
19                Respondent.
20   _________________________________________
21
22   FOR PETITIONER:                                   DAVID A. ISAACSON, Cyrus D. Mehta &
23                                                     Partners PLLC, New York, New York.
24
25   FOR RESPONDENT:                                   MATTHEW GEORGE, Trial Attorney
26                                                     (Rebekah Nahas, Trial Attorney, on the
27                                                     brief) for Chad A. Readler, Acting Assistant
28                                                     Attorney General, Civil Division, U.S.
29                                                     Department of Justice, Washington, DC.
30
 1          UPON DUE CONSIDERATION of the decision of the Board of Immigration
 2   Appeals (“BIA”) dated April 13, 2016, IT IS HEREBY ORDERED, ADJUDGED,
 3   AND DECREED that the petition for review is DENIED.

 4          Petitioner Carlos Augusto Flores Anyosa (“Flores”), a native and citizen of Peru,
 5   seeks review of an April 13, 2016 decision of the BIA affirming a September 9, 2014
 6   decision of an Immigration Judge (“IJ”) that denied Flores’s application for asylum,
 7   withholding of removal, and relief under the Convention Against Torture (“CAT”). In re
 8   Carlos Augusto Flores Anyosa, No. A 205 137 491 (B.I.A. Apr. 13, 2016), aff’g No. A 205 137
 9   491 (Immig. Ct. N.Y. City Sept. 9, 2014). We assume the parties’ familiarity with the
10   underlying facts, procedural history, and arguments on appeal, to which we refer only as
11   necessary to explain our decision to deny the petition for review.

12          Under the circumstances of this case, we review both the IJ’s and BIA’s opinions “for
13   the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). In the
14   proceedings before the IJ and the BIA, Flores bore the burden of establishing past
15   persecution or an objectively reasonable well-founded fear of future persecution.
16   8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a), (b); Paul v. Gonzales, 444 F.3d 148, 154 (2d
17   Cir. 2006). Because the IJ and the BIA found that Flores testified credibly in all respects, we
18   treat his factual claims as undisputed and review de novo the legal question whether the facts
19   alleged establish past persecution or a well-founded fear of future persecution. Mirzoyan v.
20   Gonzales, 457 F.3d 217, 220 (2d Cir. 2006). We examine the record to determine whether
21   substantial evidence supports the agency’s finding that Flores did not show the Peruvian
22   police were unwilling or unable to protect him against any threatened harm. Diallo v. I.N.S.,
23   232 F.3d 279, 287 (2d Cir. 2000).

24                                                  I.

25          Flores first challenges the IJ and BIA’s determination that he failed to demonstrate
26   that he had suffered past persecution. We have defined persecution as “the infliction of
27   suffering or harm upon those who differ on the basis of a protected statutory ground.”
28   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006). Persecution includes “non-
 1   life-threatening violence and physical abuse, or non-physical forms of harm such as the
 2   deliberate imposition of a substantial economic disadvantage.” Id. (internal quotation marks
 3   and citation omitted). It does not, however, include “mere harassment” or “every sort of
 4   treatment our society regards as offensive.” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir.
 5   2011) (internal quotation marks omitted).

 6          We have held that, generally speaking, “threats of persecution, no matter how
 7   credible, do not [on their own] demonstrate past persecution.” Huo Qiang Chen v. Holder, 773
 8   F.3d 396, 406 (2d Cir. 2014) (holding that Chinese government’s threat to impose a fine
 9   equivalent to twenty times petitioner’s income did not constitute past persecution because
10   threat was not actually fulfilled). Indeed, as the Ninth Circuit has observed, “if mere threats .
11   . . were enough to constitute past persecution, then it is not clear what would be left of the
12   [well-founded fear of future persecution] category. That is, it is not clear what conduct under
13   such a rule would ever trigger a well-founded fear without simultaneously constituting past
14   persecution itself.” Lim v. I.N.S., 224 F.3d 929, 937 (9th Cir. 2000).

15          Flores concedes that neither he nor his family members were physically harmed by
16   the Los Norteños gang, but argues that Huo Qiang Chen is distinguishable because it focused
17   on unfulfilled economic threats, not death threats, in concluding that the petitioner failed to
18   establish past persecution. But nothing in the reasoning of Huo Qiang Chen is limited to
19   threats of a nature different than death threats. Indeed, in Huo Qiang Chen we cited with
20   approval Lim, 224 F.3d at 932–33, which involved death threats. 773 F.3d at 406.

21          A narrow exception to the rule that the mere receipt of threats generally does not
22   demonstrate past persecution may exist in “certain extreme cases [where] repeated and
23   especially menacing death threats can constitute a primary part of a past persecution claim,
24   particularly where those threats are combined with confrontation or other mistreatment.”
25   Lim, 224 F.3d at 936; see also Chavarria v. Gonzalez, 446 F.3d 508, 520 (3d Cir. 2006) (finding
26   past persecution where persecutors held a gun and a knife to petitioner’s head and told him
27   they would kill him if they saw him again). Although the Peruvian gang’s conduct towards
28   Flores was menacing, the circumstances in Flores’s case do not place the threats made to
29   him firmly in the Chavarria category.

                                                     3
 1           Flores also posits that the emotional and psychological harm he suffered
 2   demonstrates that he was persecuted, contending that the agency erred by not analyzing that
 3   harm cumulatively with the damage to his home, loss of his job, and confinement. But the
 4   record reflects that the agency did consider Flores’s harm cumulatively: the IJ’s decision
 5   considered the “cumulative nature of Los Norteños’ conduct,” and acknowledged that
 6   Flores’s psychological harm must be considered in the context of the mistreatment he
 7   suffered. A.R. 47–48; see also Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (“[W]hile
 8   the difference between harassment and persecution is necessarily one of degree . . . the
 9   degree must be assessed with regard to the context in which the mistreatment occurs.”
10   (internal quotation marks and citation omitted)). The agency expressly took note of the
11   phone calls that Flores received, as well as the threats and vandalism incident, before
12   concluding that Flores’s harm did not rise to the level of persecution. We identify no error in
13   its conclusion that Flores did not establish past persecution.

14                                                  II.

15          Flores also contends that the agency erred in finding that he failed to show that his
16   fear of future persecution was objectively reasonable. As we have ruled in the past, such a
17   fear “may be well-founded even if there is only a slight, though discernible, chance of
18   persecution.” Yan Chen v. Gonzales, 417 F.3d 268, 270 (2d Cir. 2005) (quoting Diallo, 232 F.3d
19   at 284); cf. Celedon-Herrera v. Lynch, 627 F. App’x 6, 8 (2d Cir. 2015) (concluding that BIA’s
20   finding that petitioner did not have objectively reasonable fear of future persecution was
21   erroneous in case involving threats by gangs). As the agency acknowledged, Flores credibly
22   testified that, while he hid in a back room, members of Los Norteños attacked his home,
23   broke his windows and showered his living room with rocks, at least one of which had a
24   menacing written death threat attached. After the attack, he daily received threatening phone
25   calls that demonstrated that the gang had a specific understanding of his daily routine,
26   including the time that he traveled to and from work and at what time and where he would
27   meet his girlfriend. Flores testified that he perceived these threats to be so severe and
28   credible that he became a “prisoner in [his] own house,” confining himself there
29   continuously from November 15 (the date of the attack) to December 11, 2011 (the date


                                                     4
 1   that he fled the country). A.R. 112, 119, 139. In an affidavit, Flores emphasized that he left
 2   his home only once during this period, when, on November 17, he went to tender his
 3   resignation to his employer.

 4          The IJ found, and the BIA affirmed, that because Los Norteños had information
 5   about Flores’s whereabouts and nevertheless “failed to carry out their threats” while he hid
 6   in his home for several weeks, Flores’s fear of future persecution by the gang was not
 7   objectively reasonable. A.R. 48. This standard is too exacting. While (as we have noted)
 8   unfulfilled threats do not typically constitute past persecution, we have held that they may
 9   form the basis for an objectively reasonable well-founded fear of future persecution. See Huo
10   Qiang Chen, 773 F.3d at 408–10 (rejecting as erroneous BIA’s determination that petitioner
11   failed to demonstrate a well-founded fear of future persecution, while affirming BIA’s
12   determination that the same unfulfilled economic threats were insufficient to demonstrate
13   past persecution). When death threats are involved, to rule that these threats must have been
14   “carried out” to give rise to a well-founded fear of future persecution would lead to the
15   absurd requirement that the petitioner have been killed (or at least have suffered an attempt
16   on his life) before becoming eligible for asylum on this ground.

17          Ultimately, however, we need not decide whether the BIA erred in finding that
18   Flores’s fear of future persecution was well-founded and objectively reasonable. Because
19   Flores’s fear of future persecution arose from conduct by a non-state actor, to qualify for
20   asylum he must additionally prove that the Peruvian government is unwilling or unable to
21   protect him from harm. See Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015) (“Private acts can
22   . . . constitute persecution if the government is unable or unwilling to control such actions.”).
23   In this case, the IJ and the BIA concluded that Flores did not sufficiently establish that the
24   Peruvian government was unwilling or unable to protect him from Los Norteños’ actions.
25   Because this is a factual determination, our review is limited to determining whether the IJ
26   and BIA’s finding is supported by substantial evidence. See Siewe v. Gonzales, 480 F.3d 160,
27   168 (2d Cir. 2007) (“So long as there is a basis in the evidence for a challenged inference, we
28   do not question whether a different inference was available or more likely.”).



                                                    5
 1          In this regard, the record demonstrates that the Peruvian police took some actions in
 2   response to Flores’s complaints that he was being threatened. Officers made an official
 3   report on October 28, 2011, reflecting Flores’s allegations against a specific Los Norteños
 4   gang member, Antony Perez. After Los Norteños vandalized his home, the police came to
 5   his residence in response to his report and photographed the crime scene. The fact that the
 6   police did not arrest the Los Norteños gang members during the several-week period after
 7   the attack on Flores’s home, when he continued to receive intimidating calls, does not
 8   sufficiently demonstrate that they were “unwilling or unable” to protect Flores. Flores’s
 9   expert and Department of State reports do provide general evidence of police corruption
10   and inefficiency in Peru, but they are insufficiently particularized to Flores’s local area and
11   situation to negate the agency’s conclusion. The record is silent as to the developments in
12   any police investigation after Flores departed Peru in December 2011. While the evidence of
13   police response in Lima is hardly overwhelming, we conclude that the IJ and BIA’s finding is
14   nonetheless supported by substantial evidence.
15          Flores’s petition for review must therefore be denied. For the same reason, we
16   conclude that Flores has not met the higher standard required to succeed on his claims for
17   withholding of removal and CAT relief. See Paul, 444 F.3d at 156; Kyaw Zwar Tun v. U.S. INS,
18   445 F.3d 554, 567 (2d Cir. 2006).
19                                            *      *       *
20          We have considered Flores’s remaining arguments and conclude that they lack merit.
21   For the foregoing reasons, the petition for review is DENIED. As we have completed our
22   review, the stay of removal that the Court previously granted in this petition is VACATED.

23

24                                                FOR THE COURT:
25                                                Catherine O’Hagan Wolfe, Clerk of Court
26




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