18-3818

Tapia-Pedroza v. Wilkinson

BIA

Hochul, IJ

A208 617 541

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 United 

3 States Courthouse, 40 Foley Square, in the City of New York, 

on the 29th 4 day of January, two thousand twenty-one.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 ROBERT D. SACK,

9 WILLIAM J. NARDINI,

10 Circuit Judges.

11 _____________________________________

12

13 JOSE ANTONIO TAPIA-PEDROZA,

14 Petitioner,

15

16 v. 18-3818

17 NAC

18 MONTY WILKINSON, ACTING UNITED 

19 STATES ATTORNEY GENERAL,

Respondent.1 20

21 _____________________________________

22

23

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 

Acting Attorney General Monty Wilkinson is automatically 

substituted for former Acting Attorney General Jeffrey A. Rosen

as Respondent.
2

1 FOR PETITIONER: Jose Perez, Esq., Law Offices of 

2 Jose Perez, P.C., Syracuse, NY. 

3

4 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

5 Assistant Attorney General;

6 Anthony C. Payne , Assistant 

7 Director; Colette J. Winston, 

8 Trial Attorney, Office of 

9 Immigration Litigation, United 

10 States Department of Justice, 

11 Washington, DC.

12 UPON DUE CONSIDERATION of this petition for review of a 

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

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

15 is DENIED.

16 Petitioner Jose Antonio Tapia-Pedroza, a native and 

17 citizen of Mexico, seeks review of a November 29, 2018, 

18 decision of the BIA affirming a November 22, 2017, decision 

19 of an Immigration Judge (“IJ”) denying asylum, withholding of 

20 removal, and protection under the Convention Against Torture 

21 (“CAT”). In re Jose Antonio Tapia-Pedroza, No. A 208 617 541

22 (B.I.A. Nov. 29, 2018), aff’g No. A 208 617 541 (Immig. Ct.

23 Buffalo Nov. 22, 2017). We assume the parties’ familiarity 

24 with the underlying facts and procedural history.

25 We have reviewed the decision of the IJ as supplemented 

26 and modified by the BIA, i.e. minus the IJ’s analysis of 
3

1 whether Tapia-Pedroza’s proposed social group is cognizable. 

2 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 

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

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

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

6 762 F.3d 191, 195 (2d Cir. 2014) (reviewing factual findings 

7 for substantial evidence and questions of law de novo); Gjolaj 

8 v. Bureau of Citizenship & Immigration Servs., 468 F.3d 140, 

9 143 (2d Cir. 2006) (reviewing nexus determination for 

10 substantial evidence).

11 Where, as here, an asylum applicant does not allege past 

12 persecution, he has the burden to establish a well-founded 

13 fear of future persecution and that “race, religion, 

14 nationality, membership in a particular social group, or 

15 political opinion . . . will be at least one central reason 

16 for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); 

17 see also 8 C.F.R. § 1208.13(b)(1), (2). To establish a well18 founded fear, an applicant must show that he “subjectively 

19 fears” persecution and that “his fear is objectively 

20 reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 

21 (2d Cir. 2004). Although a “fear may be well-founded even 
4

1 if there is only a slight, though discernible, chance of 

2 persecution,” Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000), 

3 a fear is not objectively reasonable if it lacks “solid 

4 support” in the record and is merely “speculative at best,”

5 Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005). 

6 We find no error in the agency’s conclusions that Tapia7 Pedroza did not establish his membership in his proposed 

8 social group or an objectively reasonable fear of 

9 persecution. He argues that he is a member of a particular 

10 social group of “individuals who have been held as material 

11 witnesses against organized criminal syndicates operating 

12 with ties to other criminal syndicates throughout Mexico.” 

13 But he did not tie the individual in the United States against 

14 whom he was a witness to organized criminal groups in Mexico. 

15 The only evidence of a connection was the fact that the 

16 individual picked him and two others up on the U.S. side of 

17 the border after another individual brought them to the border 

18 in Mexico. Tapia-Pedroza had no prior knowledge of either 

19 individual, they were not from his hometown, and neither he 

20 nor his family members had received any threats. Given the 

21 lack of evidence of a connection to organized criminal groups 
5

1 or that anyone was interested in harming him, substantial 

2 evidence supports the agency’s conclusion that he failed to 

3 show a connection to a protected ground or an objectively 

4 reasonable fear of future harm. See Jian Hui Shao v. Mukasey, 

5 546 F.3d 138, 157–58 (2d Cir. 2008) (“[W]hen a petitioner 

6 bears the burden of proof, his failure to adduce evidence can 

7 itself constitute the ‘substantial evidence’ necessary to 

8 support the agency’s challenged decision.”). Tapia9 Pedroza’s failure to establish an objectively reasonable fear 

10 of persecution is dispositive of asylum, withholding of 

11 removal, and CAT relief. See Lecaj v. Holder, 616 F.3d 111, 

12 119–20 (2d Cir. 2010). 

13 For the foregoing reasons, the petition for review is 

14 DENIED. All pending motions and applications are DENIED and 

15 stays VACATED.

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe,

18 Clerk of Court