20-2800

Vasquez v. Garland

BIA

Ruehle, IJ

A209 449 607

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 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 2nd 4 day of November, two thousand twenty5 two.

6

7 PRESENT:

8 RICHARD C. WESLEY,

9 MICHAEL H. PARK,

10 BETH ROBINSON,

11 Circuit Judges.

12 _____________________________________

13

14 UBERTO GALICIA VASQUEZ,

15 Petitioner,

16

17 v. 20-2800

18 NAC

19 MERRICK B. GARLAND, UNITED 

20 STATES ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Frederick P. Korkosz, Esq., 

25 Albany, NY.

26

27 FOR RESPONDENT: Brian Boynton, Acting Assistant

28 Attorney General; Keith I. 
2

1 McManus, Assistant Director; 

2 Rachel L. Browning, Trial 

3 Attorney, Office of Immigration 

4 Litigation, United States 

5 Department of Justice, Washington, 

6 DC.

7 UPON DUE CONSIDERATION of this petition for review of a 

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

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

10 is DENIED.

11 Petitioner Uberto Galicia Vasquez, a native and citizen 

12 of Guatemala, seeks review of an August 3, 2020, decision of 

13 the BIA affirming an August 24, 2018, decision of an 

14 Immigration Judge (“IJ”) denying his application for 

15 withholding of removal. In re Uberto Galicia Vasquez, No. A

16 209 449 607 (B.I.A. Aug. 3, 2020), aff’g No. A 209 449 607 

17 (Immig. Ct. Buffalo Aug. 24, 2018). We assume the parties’ 

18 familiarity with the underlying facts and procedural history.

19 We have reviewed the IJ’s decision as modified by the 

20 BIA, i.e., minus the IJ’s adverse credibility determination 

21 because the BIA assumed credibility. See Xue Hong Yang v. 

22 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We 

23 review factual findings for substantial evidence and

24 questions of law de novo. Weng v. Holder, 562 F.3d 510, 513 
3

1 (2d Cir. 2009); see also 8 U.S.C. § 1252(b)(4)(B) (“the 

2 administrative findings of fact are conclusive unless any 

3 reasonable adjudicator would be compelled to conclude to the 

4 contrary”).

5 To qualify for withholding of removal, Vasquez had to 

6 show past persecution or that he will “more likely than not”

7 be persecuted in the future. 8 C.F.R. § 1208.16(b); see Wei 

8 Sun v. Sessions, 883 F.3d 23, 27–28 (2d Cir. 2018) 

9 (“Eligibility for withholding of removal requires a clear 

10 probability of persecution, i.e., it is more likely than not 

11 that the alien would be subject to persecution.” (ellipsis 

12 and quotation marks omitted)). The agency did not err in 

13 finding that Vasquez failed to show past harm that rose to 

14 the level of persecution or that his fear of future 

15 persecution was objectively reasonable. 

16 Vasquez testified that members of a drug cartel left 

17 “papers” at his home telling his family he had to sell drugs 

18 or the family “was going to pay for it” and that sometime in 

19 2014 he received a call from people he could not identify 

20 asking him to take drugs from one place to another, or across 

21 the border. He could not recall if he received one or two 
4

1 calls, but the caller threatened to kill him or someone in 

2 his family if he did not sell drugs. He reported the call 

3 to the police but could not give the caller’s name because he 

4 did not know it. He was never physically harmed, and he did 

5 not receive threats during the five months before he left 

6 Guatemala in 2015. Vasquez testified that that the only 

7 physical harm to him or his family was that his sister was 

8 killed in 2018; but he did not know who killed her or why. 

9 Based on this record, the agency reasonably determined that 

10 Vasquez did not demonstrate harm rising to the level of past 

11 persecution. See Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 

12 412 (2d Cir. 2006) (noting that courts have “rejected [past 

13 persecution] claims involving ‘unfulfilled’ threats”); see 

14 also Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007) (an 

15 applicant cannot claim persecution based on harm to a family 

16 member unless the harm was on account of the same protected 

17 ground that was the basis of the asylum claim and the 

18 applicant was “within the zone of risk” when the family member 

19 was harmed).

20 Vasquez also failed to establish “a clear probability”

21 of future persecution, i.e., that it was “more likely than 
5

1 not” that he would be persecuted if he returned to Guatemala. 

2 Wei Sun, 883 F.3d at 27–28; see also 8 C.F.R. § 1208.16(b)(2). 

3 He testified that he stayed in Guatemala for five months 

4 without incident after the last threat; his mother, wife, and 

5 daughter remained unharmed and had no further communications

6 from cartels or drug dealers; and he had no evidence to 

7 connect his sister’s death in 2018 to the threats he received 

8 before he left Guatemala. See Huang v. U.S. INS, 421 F.3d 

9 125, 129 (2d Cir. 2005) (“In the absence of solid support in 

10 the record . . . [applicant’s] fear is speculative at best.”).

11 Because the agency did not err in finding that Vasquez 

12 failed to meet his burden to show past persecution or a clear 

13 probability of future persecution, we need not consider his 

14 remaining arguments regarding the Guatemalan government’s 

15 ability to protect him or whether his social group is 

16 cognizable. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 

17 (“As a general rule courts and agencies are not required to 

18 make findings on issues the decision of which is unnecessary 

19 to the results they reach.”).

20
6

1 For the foregoing reasons, the petition for review is 

2 DENIED. All pending motions and applications are DENIED and 

3 stays VACATED.

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe,

6 Clerk of Court