21-6140

Oliveros Hernandez v. Garland

BIA

Vomacka, IJ

A073 049 729

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.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 20th day of December, two thousand twenty-three.

PRESENT:

DENNY CHIN,

RICHARD J. SULLIVAN,

MARIA ARAÚJO KAHN,

Circuit Judges.

_____________________________________

CESAR DE JESUS OLIVEROS HERNANDEZ, 

Petitioner,

v. 21-6140

NAC

MERRICK B. GARLAND, UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_____________________________________
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For Petitioner: Perham Makabi, Kew Gardens, NY.

For Respondent: Brian Boynton, Acting Assistant 

Attorney General; Daniel E. 

Goldman, Senior Litigation Counsel; 

Mona Maria Yousif, Attorney, Office 

of Immigration Litigation, United 

States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of 

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

DECREED that the petition for review is DENIED.

Petitioner Cesar De Jesus Oliveros Hernandez, a native and citizen of 

Guatemala, seeks review of a decision of the BIA affirming a decision of an 

Immigration Judge (“IJ”) denying his application for asylum, withholding of 

removal, and relief under the Convention Against Torture (“CAT”). In re Cesar De 

Jesus Oliveros Hernandez, No. A073 049 729 (B.I.A. Feb. 10, 2021), aff'g No. A073 049

729 (Immig. Ct. N.Y. City June 15, 2018). We assume the parties’ familiarity with 

the underlying facts and procedural history.

“Because the BIA adopted and affirmed the IJ’s decision, we review the two 

decisions in tandem.” Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

Questions of law are reviewed de novo, whereas factual findings are reviewed 
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under the substantial-evidence standard and are treated as “‘conclusive unless any 

reasonable adjudicator would be compelled to conclude to the contrary.’” Paloka 

v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (quoting 8 U.S.C. § 1252(b)(4)(B)). 

An asylum applicant must show past “persecution or a well-founded fear 

of persecution on account of race, religion, nationality, membership in a particular 

social group, or political opinion.” 8 U.S.C. § 1101(a)(42). Oliveros Hernandez 

asserts that he demonstrated past persecution because his employers and other 

workers on the farms where he worked between the ages of nine and twenty

verbally and physically abused him because they perceived him to be indigenous. 

Persecution may include “non-life-threatening violence and physical abuse,”

Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm must be 

sufficiently severe and rise above “mere harassment,” Ivanishvili v. U.S. Dep’t of 

Just., 433 F.3d 332, 341–42 (2d Cir. 2006). “[T]he degree [of harm] must be assessed 

with regard to the context in which the mistreatment occurs.” Beskovic, 467 F.3d at 

226 (internal quotation marks omitted). Moreover, the harm must be inflicted 

either by state actors or by private individuals that “the government is unable or 

unwilling to control.” Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015). 
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Here, the agency did not err in concluding that Oliveros Hernandez’s 

asserted harms did not rise to the level of persecution. To be sure, Oliveros 

Herandez testified that his childhood classmates and managers at the farm where 

he worked between the ages of nine and twenty hit him on multiple occasions over 

the course of eleven years because they perceived him to be an indigenous person. 

But the agency correctly observed that his injuries never required medical 

attention, that he only sometimes sustained “bruises” “on [his] body,” and that 

this alleged mistreatment resulted in no “lasting injuries.” Certified Admin. 

Record at 3, 58, 128–30. Accordingly, the agency did not err in concluding that, 

even considering Oliveros Hernandez’s age at the time, the alleged mistreatment 

and the extent of his “physical harm” were “insufficiently severe to constitute 

persecution.” Id. at 3 (citing id. at 58–59); see Jian Qiu Liu v. Holder, 632 F.3d 820, 

822 (2d Cir. 2011).1

1 Oliveros Hernandez also contends that the agency did not address his allegation that “he was 

whipped with the reins of a horse and shot at . . . when he was only fourteen years old.” Pet. Br. 

at 17. His own testimony, however, reveals that the farm workers “hit [him] with the reins of the 

horses” and later shot at him “because [he] was working too slowly” and because he demanded 

to be paid for his work, not because of his perceived status as an indigenous person. CAR at 112–

13. As such, there is no evidence that his persecutors were motivated to harm him “on account 

of” a protected ground. 8 U.S.C. § 1101(a)(42); see also Paloka, 762 F.3d at 195 (“Whether the 

requisite nexus exists depends on the views and motives of the persecutor.” (internal quotation 

marks omitted)). While the agency did not make any explicit nexus findings with regard to these 

allegations of violent conduct, remand is unnecessary where “it is clear that the agency would 

adhere to its prior decision in the absence of error.” Lin v. U.S. Dep’t of Just., 453 F.3d 99, 107 
5

Oliveros Hernandez responds that the agency applied an incorrect legal 

standard by purportedly determining that there could be no past persecution 

without a “lasting injury.” Certified Admin. Record at 3. We disagree. While it

is true that an applicant is not required to show “permanent or serious injury” to 

establish past persecution, Edimo-Doualla v. Gonzales, 464 F.3d 276, 283 (2d Cir. 

2006), the agency never suggested that the absence of a “lasting injury” was 

dispositive, Certified Admin. Record at 3. To the contrary, the BIA considered, in 

proper context, all the factors that bore on the past-persecution inquiry before 

determining that the IJ did not err in concluding that there was no past 

persecution. See, e.g., id. (“[E]ven considering the above-summarized harm 

aggregately and in light of [Oliveros Hernandez’s] age at the time, the mistreatment 

and physical harm, which did not result in lasting injuries, are insufficiently severe 

to constitute persecution.” (emphasis added)). 

Moreover, even if it could be argued that the asserted abuse rose to the level 

of persecution, the agency correctly – and independently – noted that the 

perpetrators were private actors, and that Oliveros Hernandez never 

demonstrated that he sought help from the police or that the Guatemalan 

(2d Cir. 2006) (internal quotation marks omitted).
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“government was [otherwise] unwilling or unable to control the attackers.” Singh 

v. Garland, 11 F.4th 106, 115 (2d Cir. 2021). Although Oliveros Hernandez testified

that his family “did not to say anything” to the police for fear that “they wouldn’t 

. . . be protected,” Certified Admin. Record at 130–32, nothing in the record reflects 

that the Guatemalan government “actually perpetrate[d] or incite[d] the 

persecution, condone[d] it[,] or . . . demonstrate[d] a complete helplessness to 

protect . . . victims,” Singh, 11 F.4th at 115. Absent such a showing, it cannot be 

said that the agency erred in denying the application. 

For the same reasons, we agree with the agency’s determination that 

Oliveros Hernandez did not meet his burden of establishing eligibility for 

withholding of removal or CAT relief. Given that “[t]he standard governing 

entitlement to withholding of deportation is more stringent than that governing 

the discretionary grant of asylum[,] . . . [a]n applicant’s failure to demonstrate 

eligibility for asylum automatically leads to a denial of withholding of 

deportation.” Abankwah v. I.N.S., 185 F.3d 18, 22 (2d Cir. 1999). Likewise, because 

Oliveros Hernandez failed to meet his burden for showing eligibility for asylum, 

he “necessarily” failed to meet the higher standard for CAT relief. See Lecaj v. 

Holder, 616 F.3d 111, 119 (2d Cir. 2010).
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For all of these reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court