13-2542
Alvarez-Elvira v. Holder
BIA
Poczter, IJ
A073 037 487
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.
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,
4 on the 9th day of December, two thousand fourteen.
5
6 PRESENT: JOHN M. WALKER, JR.,
7 REENA RAGGI,
8 GERARD E. LYNCH,
9 Circuit Judges.
10 _____________________________________
11
12 RAYNA ALVAREZ-ELVIRA,
13 Petitioner,
14
15 v. 13-2542
16 NAC
17 ERIC H. HOLDER, JR., UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Jennifer Oltarsh, Oltarsh &
23 Associates, P.C., New York, New York
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Paul Fiorino, Senior
27 Litigation Counsel; Karen L. Melnik,
28 Trial Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Rayna Alvarez-Elvira, a native and citizen of Guatemala,
6 seeks review of a June 5, 2013 decision of the BIA affirming
7 the April 2, 2012 decision of Immigration Judge (“IJ”) Aviva
8 L. Poczter, which denied Alvarez-Elvira’s applications for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). See In re Rayna Alvarez-
11 Elvira, No. A073 037 487 (B.I.A. Jun. 5, 2013), aff’g No. A073
12 037 487 (Immig. Ct. N.Y.C Apr. 2, 2012). Alvarez-Elvira
13 sought such relief based on political persecution in the form
14 of a threat, in 1991, by individuals she believed were
15 associated with assailants who had killed her boss, the mayor
16 of Escuintla, Guatemala, that year. She also claimed a fear
17 of future persecution by those same assailants if she returns
18 to Guatemala. Under the circumstances of this case, we review
19 both the IJ’s and the BIA’s decisions, see Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009), applying well
21 established standards of review, see 8 U.S.C. § 1252(b)(4)(B).
22 In doing so, we assume the parties’ familiarity with the facts
23 and procedural history of this case.
2
1 On appeal, Alvarez-Elvira raises no arguments pertaining
2 to past persecution or CAT relief. Consequently, she has
3 waived these claims. See Yueqing Zhang v. Gonzales, 426 F.3d
4 540, 545 n.7 (2d Cir. 2005). Thus, the only remaining issue
5 is whether Alvarez-Elvira established a well-founded fear of
6 future persecution on account of race, religion, nationality,
7 membership in a particular social group, or political opinion.
8 See 8 C.F.R. § 1208.13(b)(2)(A). Alvarez-Elvira “must
9 establish that [a protected ground] was or will be at least
10 one central reason for” the claimed persecution. 8 U.S.C.
11 § 1158(b)(1)(B)(i). Proving a “well-founded fear” requires
12 that “the applicant establish both a subjective and an
13 objective element. ‘The former is established via the
14 applicant’s credible testimony that his fear is genuine; while
15 the latter is largely dependent upon the context and
16 believability he can establish for his claims through
17 presentation of reliable, specific, objective supporting
18 evidence.’” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d
19 Cir. 2004) (quoting Cordero-Trejo v. INS, 40 F.3d 482, 491
20 (1st Cir. 1994)).
21 Here, the agency reasonably determined that Alvarez-
22 Elvira did not produce evidence showing a nexus between the
3
1 threat she received in 1991 and her political or imputed
2 political opinion. Alvarez-Elvira’s testimony about the
3 threat she received, who made the threat, and what motivated
4 the threat (other than a desire for information on how the
5 assassinated mayor ran his office) was vague and undetailed.
6 A single threat from unidentified individuals, for unknown
7 reasons, is insufficient to establish an objective fear of
8 future persecution on the protected ground of political
9 belief. See Ramsameachire v. Ashcroft, 357 F.3d at 178;
10 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
11 Cir. 2006) (holding that, to constitute persecution, harm must
12 be more than harassment).
13 Moreover, Alvarez-Elvira testified that she did not know
14 why anyone would have a continued interest in her or whether
15 the political forces now controlling the Guatemalan government
16 were the same as those in control in 1991. The objective
17 reasonableness of her fear of future persecution is further
18 undermined by the length of time that has elapsed since the
19 1991 threat, her ability to return to Guatemala on five
20 occasions without incident, and her daughter’s ability to live
21 in Escuintla since 1991 without threats or harassment. See
22 Kone v. Holder, 596 F.3d 141, 148 (2d Cir. 2010) (adopting
23 Ninth Circuit’s holding that “‘return trips can be considered
4
1 as one factor, among others, to rebut th[e] presumption [of
2 future persecution]’” (quoting Boer-Sedano v. Gonzales, 418
3 F.3d 1082, 1091 (9th Cir. 2005)); Melgar de Torres v. Reno,
4 191 F.3d 307, 313 (2d Cir. 1999) (holding that ability of
5 applicant’s family to remain unharmed “cuts against” finding
6 of well-founded fear).
7 The record also supports the agency’s finding that there
8 was a lack of corroboration from Alvarez-Elvira’s siblings
9 explaining why she was “being sought by anyone in Guatemala
10 for any particular reason.” Certified Administrative Record
11 (“CAR”) 83–84. We afford “substantial deference [to] an IJ’s
12 determination that corroborating evidence was reasonably
13 available to the applicant.” Chuilu Liu v. Holder, 575 F.3d
14 193, 197-98 (2d Cir. 2009). Here, the record only supports
15 such deference given that Alvarez-Elvira testified that she
16 communicated with her family in Guatemala and had visited her
17 family in 1991, 1995, 1997, 2000, and 2004.
18 In any event, Alvarez-Elvira does not contest or explain
19 the lack of corroboration from her family. Instead, she
20 relies on three statements from friends or acquaintances
21 providing only general information about Alvarez-Elvira’s
22 employment in 1991, the 1991 threat, and the continued search
23 for Alvarez-Elvira by unidentified men. The agency was not
5
1 obliged to locate an objectively reasonable fear of future
2 persecution in statements lacking detail regarding who is
3 searching for Alvarez-Elvira or why they have any interest in
4 her over twenty years after the 1991 assassination.
5 Finally, although Alvarez-Elvira did not testify that she
6 feared returning to Guatemala because of ongoing violence and
7 social strife, her attorney raises the claim. The point fails
8 because “persecution must be on account of an enumerated
9 ground set forth in the Act, and general crime conditions are
10 not a stated ground.” Melgar de Torres v. Reno, 191 F.3d at
11 314.
12 Because Alvarez-Elvira has failed to establish her
13 eligibility for asylum, it follows that she cannot satisfy the
14 higher standard for withholding of removal. See Paul v.
15 Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).
16 For the foregoing reasons, the petition for review is
17 DENIED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk of Court
20
21
6