20

- 2271 Lopez

- Perez v. Garland BIA Parchert , IJ A 093 334 665 

### 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 A NY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 2 9 t h da y of M a r c h , two thousand 3 twent y - t hree

. 4 5 PRESENT: 6 DEBRA ANN LIVINGSTON , 7 C hief Judge , 8 BETH ROBINSON , 9 ALISON J. NATHAN , 10 Circuit Judges. 11

_____________________________________ 12 13 MANUEL ORLANDO LOPEZ

- PEREZ , 14 Petitioner , 15 16

v. 20

- 2271 17 NAC 18 MERRICK B. GARLAND , UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent

. 21

_____________________________________ 22 232 FOR PETITIONER : Manuel Orlando Lopez

- Perez , Pro Se , 1 Totowa, N J

. 2 3 FOR RESPONDENT: Brian Boynton , Acting Assistant Attorney 4 General ; Justin Markel , Nancy E. Friedman , 5 Senior Litigation Counsel , Office of 6 Immigration Litigation, United States 7 Department of Justice, Washington, D C. 8 UPON DUE CONSIDERATION of this petition for review of a Board of 9
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 10
DECREED that the petitio n for review is DENIED

. 11

Petitioner Manuel Orlando Lopez

- Perez , a native and citizen of Guatemala , 12

seeks review of a June 1 9 , 2020 , decision of the BIA affirming a May 14, 2018 , 13

decision of an Immigration Judge (“IJ”) denying his application for asylum, 14
withholding of removal, and relief under the Convention Against Torture 15
(“CAT”)

. In re Manuel Orlando Lopez

- P erez , No. A 093 334 665 (B.I.A. June 1 9 , 16

2020 ), aff’g No. A 093 334 665 (Immig . Ct. N.Y. City May 14, 2018 ). We assume 17
the parties’ familiarity with the underlying facts and procedural history. 18
We have reviewed the IJ’s decision as supplemented by the BIA. See Yan 19

Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). 20

I. Due Process Violations 21

We do not consider Lopez

- Perez’s ineffective assistance of counsel claim 22

because he did not sufficiently raise it before the BIA. See Arango

- Aradondo v. INS , 233 13 F.3d 610, 614 (2d Cir. 1994) (holding that a petitioner must raise an ineffective 1
assistance claim before the BIA in the first instance). His assertion before the BIA 2

that he was “willing to file a claim for ineffective assistance of counsel if necessary” 3

was insufficient to raise a claim for ineffective assistance of couns el

. See Twum v. 4

INS , 411 F.3d 54, 59 (2d Cir. 2005) ; Jian Yun Zheng v. U.S. Dep’t of Justice , 409 F.3d 5

43, 46

– 47 (2d Cir. 2005)

. Moreover, contrary to Lopez

- Perez’s position, the 6
alleged ineffective assistance is not clear on the face of the record

. 7
We reject Lopez

- Perez’s argument that the IJ violated his due process rights 8
by failing to develop a full record at the hearing. Although the IJ has an 9
obligation to help develop the record, the burden of proof is on the applicant. See 10
8 U.S.C. §§ 1158(b)(1)(B)(i) (placing burden of proof o n asylum applicant), 11
1229a(b)(1) (“The immigration judge shall administer oaths, receive evidence, and 12
interrogate, examine, and cross

- examine the alien and any witnesses.”); Qun Yang 13
v. McElroy , 277 F.3d 158, 162 (2d Cir. 2002). To establish a due proces s violation, 14

the noncitizen must show that the noncitizen was denied the opportunity to be 15
heard “in a meaningful manner,” Burger v. Gonzales , 498 F.3d 131, 134 (2d Cir. 16
2007), and that the “alleged shortcomings have prejudiced the outcome ” of the 17

case, Garcia

- Villeda v. Mukasey , 531 F.3d 141, 149 (2d Cir. 2008). Lopez

- Perez has 18
not met either prong of this test because the record reflects that the IJ questioned 194 him throughout the hearing and he has not alleged what specific additional 1

information he could have provided if questioned further

. 2

II. Asylum, Withholding of Removal, and CAT Relief 3
To qualify for asylum and withholding of removal, an applicant must 4
establish past persecution or a well

- founded fear of future persecution on account 5

of “race, religion, nationality, membership in a particular social group, or political 6
opinion.” 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A) , 1101(a)(42)

. An applicant 7

who does not establish past persecution, has the burden to demonstrate an 8
“objectively reasonable” fear of future persecution. Ramsameachire v. Ashcroft , 357 9
F.3d 169, 178 (2d Cir. 2004). A fear is not objectively reasonable if it lacks “solid 10
support” in the record and is mer ely “speculative at best.” Jian Xing Huang v. U.S. 11

INS , 421 F.3d 125, 12 9 (2d Cir. 2005). 12
Lopez

- Perez did not establish past persecution because he did not testify 13
that he personally suffered any past harm. “As a general principle, an asylum 14
applicant cannot claim past persecution based solely on harm that was inflicted on 15
a family member . . . . The statutory scheme unambiguously dictates that 16
applicants can become candidates for asylum relief only based on persecution that 17
they themselves have suffer ed or must suffer.” Tao Jiang v. Gonzales , 500 F.3d 137, 18
141 (2d Cir. 2007) ( cleaned up ). 195 Although his argument is not entirely clear, Lopez

- Perez appears to assert 1
that the harm his family members suffered caused him emotional and 2
psychological harm that , because of his age at the time, constituted past 3
persecution or is relevant to his present objectively reasonable fear of future 4
persecution . There may be circumstances where harm to a family member is 5
sufficient to constitute pas t persecution of the applicant, but the applicant would 6

have to have been in the “zone of risk” at the time of the harm and suffered 7
continuing consequences. See Jorge

- Tzoc v. Gonzales , 435 F.3d 146, 150 (2d Cir. 8
2006) (remanding for consideration of fact that applicant was seven when his 9
family and neighbors were massacred by the Guatemalan army, applicant saw the 10
body of a family member, applicant’s family lost their home and land and 11
struggled to survive after relocating); see also Tao Jiang , 500 F.3d a t 141

– 42. In 12
contrast to the massacre, relocation, and financial struggle in Jorge

- Tzoc , Lopez

13
Perez’s father was shot, but survived, Lopez

- Perez did not allege that he witnessed 14
the shooting or threats made against his brother a few years later, and, as to 15
continuing consequences, he states only that his parents would not let him go out 16

alone and that he came to the United States because he was tired of living in fear. 17
Lopez

- Perez does not otherwise articulate a meaningful challenge to the 18
agency’s determinations that his fear of future persecution and torture was too 196 speculative ; he simply asserts that the incidents h e described gave rise to 1
emotional and psychological suffering and thus give rise to a well

- fou nded fear of 2
persecution . Nor does he challenge the BIA’s finding s that he had failed to 3
substantively address the IJ’ s conclusion that his fear of future harm was too 4
speculative and that he did not show a state actor

. Finally, he did not appeal the 5
IJ’ s denial of CAT protection and a ccordingly we do not reach it

. See Yueqing 6
Zhang v. Gonzales , 426 F.3d 540, 545 n.7 (2d Cir. 2005) (deeming applicant’s “claim 7
abandoned” where he raised an issue in “only a single conclusory sentence”). 8
For the foregoing reasons, the petition for review is DENIED

. All pending 9
motions and applications are DENIED and stays VACATED. 10

FOR THE COURT: 11 Catherine O ’ Hagan Wolfe , 12 Clerk of Court 13