10-2037-ag
    Blanco-Salvador v. Holder
                                                                                   BIA
                                                                              Videla, IJ
                                                                          A075 798 462
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 25th day of April, two thousand twelve.

    PRESENT:
             JON O. NEWMAN,
             ROSEMARY S. POOLER,
             DENNY CHIN,
                  Circuit Judges.
    _______________________________________

    WILBER LEONEL BLANCO-SALVADOR,
             Petitioner,

                        v.                                 10-2037-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:                  Anne Pilsbury, Central American
                                     Legal Services, Brooklyn, New York.

    FOR RESPONDENT:                  Tony West, Assistant Attorney
                                     General; Linda S. Wernery, Assistant
                                     Director; James E. Grimes, Senior
                                     Litigation Counsel, Office of
                                     Immigration Litigation, United
                                     States Department of Justice,
                                     Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED in part and GRANTED in part.

    Petitioner Wilber Leonel Blanco-Salvador, a native and

citizen of El Salvador, seeks review of a May 7, 2010, order

of the BIA reversing immigration judge (“IJ”) Gabriel C.

Videla’s February 8, 2000, decision granting his application

for asylum.     In re Wilber Leonel Blanco-Salvador, No. A075

798 462 (B.I.A. May 7, 2010); rev’g No. A075 798 462 (Immig.

Ct. N.Y. City Feb. 8, 2000).    We assume the parties’

familiarity with the underlying facts and procedural history

of this case.

    Under the circumstances of this case, we have reviewed

only the BIA’s decision.     See Yan Chen v. Gonzales, 

, 271 (2d Cir. 2005).    The applicable standards of review

are well-established.     See 8 U.S.C. § 1252(b)(4)(B); see

also Yanqin Weng v. Holder, 

, 513 (2d Cir.

2009).

    An alien who establishes past persecution on account of

protected ground “shall also be presumed to have a well-

founded fear of persecution on the basis of the original

claim.”   See 8 C.F.R. § 1208.13(b)(1).    However, the

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presumption may be rebutted if, inter alia, the agency finds

that “[t]here has been a fundamental change in circumstances

such that the applicant no longer has a well-founded fear of

persecution in the applicant’s country of nationality.”

8 C.F.R. § 1208.13(b)(1)(i)(A); see also Lecaj v. Holder,

, 115 (2d Cir. 2010).   The government bears the

burden to establish such a fundamental change in country

conditions by a preponderance of the evidence.   8 C.F.R.

§ 1208.13(b)(1)(ii); see also 

.

    Here, the BIA determined that, even assuming that

Blanco-Salvador demonstrated past persecution, circumstances

in El Salvador had fundamentally changed such that he no

longer had a well-founded fear of persecution.

Specifically, the BIA found that “the civil war in El

Salvador ended in 1991 and that the guerillas are no longer

active,” and that “while human rights issues remain in El

Salvador and violence persists, it is no longer due to a

civil war and the government is not targeting certain

localities thought to be pro-guerrilla.”   In doing so, the

BIA took administrative notice of the 2009 U.S. State

Department Report on El Salvador (“2009 Report”), in

addition to the 1997 U.S. State Department Report (“1997

Report”) in the record.

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    Blanco-Salvador argues that the BIA engaged in

impermissible fact-finding by taking administrative notice

of the 2009 report.     However, it is “well-settled” that the

BIA has the authority to take administrative notice of

current events bearing on an asylum applicant’s well-founded

fear of persecution, including State Department reports.

See Jian Hui Shao v. Mukasey, 

, 166 (2d Cir.

2008).     Furthermore, because the BIA relied on the 1997

Report, which was part of the administrative record, in

addition to the 2009 Report in finding a fundamental change

in circumstances in El Salvador, its failure to inform

Blanco-Salvador of its intention to take administrative

notice of the 2009 Report did not violate his right to due

process.     See Jian Hui 

; cf. Burger

v. Gonzales, 

, 132-33 (2d Cir. 2007);       Chhetry

v. U.S. Dep’t of Justice, 

, 198 (2d Cir. 2007).

    Blanco-Salvador’s contention that “[t]here is still

much political violence in El Salvador and it is the

Government’s burden to show that [he] is no longer in

danger” is unavailing.     Even if Blanco-Salvador established

past persecution, the presumption of a well-founded fear to

which he was entitled applies only to persecution “on the

basis of the original claim.”       See 8 C.F.R. § 1208.13(b)(1)

                                4
(emphasis added).   The fact that violence continues in El

Salvador is therefore insufficient to demonstrate that

Blanco-Salvador would be persecuted on the basis of his

original claim that the military targeted him due to its

belief that he supported the guerillas.       Id.; see also

Melgar de Torres v. Reno, 

, 314 (2d Cir. 1999)

(“General violence . . . does not constitute persecution,

nor can it form a basis for petitioner’s well-founded fear

of persecution”).   Furthermore, although Blanco-Salvador

referred to problems with “forced recruitment” by the

guerillas in 1994, he did not claim that the recruitment

amounted to past persecution.       In any event, as the BIA

observed, forced recruitment is not a proper basis for

asylum.   See INS v. Elias-Zacarias, 

, 482 (1992)

(“the mere existence of a generalized ‘political’ motive

underlying the guerillas’ forced recruitment is inadequate

to establish (and, indeed, goes far to refute) the

proposition that Elias-Zacarias fears persecution on account

of political opinion”) (emphasis in original).       Thus, the

BIA did not err in denying Blanco-Salvador’s application for

asylum and withholding of removal.

    With respect to Blanco-Salvador’s request for

humanitarian asylum under 8 C.F.R. § 1208.13(b)(1)(iii), we

                                5
have found that to merit a grant of humanitarian asylum on

the basis of severe past persecution, an applicant must

demonstrate “long-lasting physical or mental effects of his

persecution.”     Omaro Jalloh v. Gonzales, 

, 152

(2d Cir. 2007); see also Hoxhallari v. Gonzales, 

, 184 (2d Cir. 2006) (upholding the denial of

humanitarian asylum to a supporter of the Democratic Party

in Albania who had been beaten and harassed on six

occasions).     Here, the BIA’s determination that Blanco-

Salvador failed to demonstrate “severe” persecution, see

8 C.F.R. § 1208.13(b)(1)(iii)(A), was not based on

impermissible fact-finding.     Rather, the BIA made a legal

determination that the facts found by the IJ were

insufficient to merit a grant of humanitarian asylum.        See

Jian Hui 

(concluding that the BIA

did not erroneously conduct de novo review of the IJ’s

factual findings by making “a legal determination that,

while [petitioner’s] credible testimony was sufficient to

demonstrate a genuine subjective fear of future persecution,

more was needed to demonstrate the objective reasonableness

of that fear”).

    While the BIA may have appropriately denied Blanco-

Salvador humanitarian asylum based on the severity of his

                                6
past persecution, however, they failed to address entirely 8

C.F.R. § 1208.13(b)(1)(iii)(B), which allows for

humanitarian asylum based on the “reasonable possibility

that [a petitioner] may suffer other serious harm upon

removal...”   The BIA is obligated to at least address

petitioner’s claims on this point. The failure to do so

cannot be excused by the rejection of petitioner’s other

claims, as subsection(iii)(B) provides for asylum in the

absence of a well-founded fear of persecution and in the

absence of severe past treatment. On remand the BIA may well

find that there is no “other serious harm” that will befall

Blanco-Salvador on removal. This may be appropriate, or it

may not. We cannot know until the BIA actually provides a

basis for its decision. A remand to the BIA for the limited

purposes of addressing Blanco-Salvador’s claims of other

serious harm is appropriate.

    For the foregoing reasons, the petition for review is

DENIED in part and GRANTED in part.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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