22-6028

Pineda v. Garland

BIA

Thompson, IJ

A094 766 501

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 11th day of May, two thousand twentythree.

PRESENT:

JOSEPH F. BIANCO,

WILLIAM J. NARDINI,

SARAH A. L. MERRIAM,

Circuit Judges.

_____________________________________

REYES T. PINEDA,

Petitioner,

v. 22-6028

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Perham Makabi, Esq., Kew Gardens, NY.
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FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant

Attorney General; John S. Hogan, Assistant 

Director; Christina R. Zeidan, Trial Attorney, 

Office of Immigration Litigation, United 

States Department of Justice, Washington, 

D.C.

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 Reyes T. Pineda, a native and citizen of El Salvador, seeks review 

of a December 14, 2021, decision of the BIA affirming a February 6, 2019, decision 

of an Immigration Judge (“IJ”) denying asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”). In re Reyes T. Pineda, No. A094

766 501 (B.I.A. Dec. 14, 2021), aff’g No. A094 766 501 (Immig. Ct. N.Y. City Feb. 6, 

2019). We assume the parties’ familiarity with the underlying facts and 

procedural history.

Under the circumstances, we have reviewed the IJ’s decision as 

supplemented and modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 

426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 

2005). We review the agency’s legal conclusions de novo and its factual findings 
3

for substantial evidence. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013). 

“[T]he administrative findings of fact are conclusive unless any reasonable 

adjudicator would be compelled to conclude to the contrary[.]” 8 U.S.C. 

§ 1252(b)(4)(B). An asylum applicant has the burden to establish past persecution 

or a well-founded fear of future persecution. See 8 U.S.C. § 1158(b)(1)(B)(i); 8 

C.F.R. § 1208.13(b)(1). Because Pineda does not challenge the agency’s finding 

that he failed to establish past persecution, the only issue before us is whether he 

met his burden to establish a well-founded fear of future persecution or a 

likelihood of torture. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) 

(“Issues not sufficiently argued in the briefs are considered waived and normally 

will not be addressed on appeal.”).

Pineda testified that in 1991 he refused an order from a guerilla commander 

of the Farabundo Marti National Liberation Front (“FMLN”) to join his unit and 

instead joined the Salvadoran army. The FMLN commander and his associates 

threatened Pineda four times in the 1990s until he fled El Salvador for the United 

States in 1999, and he fears harm from the commander or the FMLN if he returns 

to El Salvador. He argues that the agency did not sufficiently address either his 

fear of future harm or country conditions evidence showing that the FMLN
4

currently has power and influence in El Salvador and is engaged in an ongoing 

conflict with a rival political party.

Pineda had the burden to establish that his fear of future persecution was 

“objectively reasonable.” Hernandez-Chacon v. Barr, 948 F.3d 94, 101 (2d Cir. 2020). 

A “fear may be well-founded even if there is only a slight, though discernible, 

chance of persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000); see also

Hernandez-Chacon, 948 F.3d at 101. But a fear is not objectively reasonable if it 

lacks “solid support” in the record and is merely “speculative at best.” Jian Xing 

Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005). Whether a fear is objectively 

reasonable “is largely dependent upon the context and believability [an applicant] 

can establish for his claims through presentation of reliable, specific, objective 

supporting evidence.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)

(quotation marks and citation omitted). An applicant can meet this burden by 

showing that he would be “singled out individually” for persecution or by 

establishing a “pattern or practice ... of persecution of a group of persons similarly 

situated to the applicant[.]” 8 C.F.R. § 1208.13(b)(2)(iii); see also Mufied v. Mukasey, 

508 F.3d 88, 91 (2d Cir. 2007). 
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The record establishes that the FMLN transitioned from a guerilla force to a 

political party after the 1992 civil war and won the presidency in 2009. However, 

these facts do not show that Pineda would be “singled out” for persecution or that 

the FMLN has a “pattern or practice” of persecuting people who refused to join 

them decades earlier or who were military members during the civil war. 8 C.F.R. 

§ 1208.13(b)(2)(iii). Nor did Pineda present other facts that support his claim. As 

the agency found, Pineda was last threatened in the 1990s, more than 20 years 

earlier, and there was no subsequent contact between the FMLN and Pineda or

between the FMLN and Pineda’s family in El Salvador. Moreover, Pineda 

remained in El Salvador until 1999, and neither the commander nor his associates 

acted on the threats or attempted to harm Pineda. Pineda did not provide any 

evidence that the commander was capable of harming him; there was no evidence 

that the commanderis still in El Salvador, what his status there might be, or indeed 

even whether he is still alive. This record does not compel a conclusion that

Pineda’s fear is more than speculative. See 8 U.S.C. § 1252(b)(4)(B); Jian Xing 

Huang, 421 F.3d at 129.

Pineda’s failure to establish a well-founded fear of persecution is dispositive 

because an applicant who fails to establish fear of harm required for asylum 
6

“necessarily” fails to meet the higher standard for withholding of removal and 

CAT relief. Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010). 

For the foregoing 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