08-4010-ag
Arbieto-Cortez v. Holder
BIA
Straus, IJ
A098 642 731
A098 642 732
A098 642 733
A098 642 734
A070 868 824
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8 th day of February, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT A. KATZMANN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 ______________________________________
12 WILFREDO ARBIETO CORTEZ, LINA CONSUELO
13 LOPEZ DE ARBIETO, LIZBETH ARBIETO LOPEZ,
14 WILFREDO ARBIETO LOPEZ, LINA KATHERINE
15 ARBIETO LOPEZ,
16 Petitioners,
17 v. 08-4010-ag
18 ERIC H. HOLDER, JR., 1 NAC
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
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1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as the respondent in this case.
1 FOR PETITIONERS: Glenn L. Formica, New Haven,
2 Connecticut.
3
4 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
5 Attorney General; John S. Hogan,
6 Senior Litigation Counsel; Robbin K.
7 Blaya, Trial Attorney, Office of
8 Immigration Litigation, United
9 States Department of Justice,
10 Washington, D.C.
11
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 in part and DISMISSED in part.
16 Petitioners, all natives and citizens of Peru, seek
17 review of a July 16, 2008 order of the BIA affirming the
18 November 28, 2006 decision of Immigration Judge (“IJ”)
19 Michael W. Straus which denied their application for asylum,
20 withholding of removal, and relief under the Convention
21 Against Torture (“CAT”). In re Nos. A098 642
22 731/732/733/734, A070 868 824 (BIA Jul. 16, 2008), aff’g
23 Nos. A098 642 731/732/733/734, A070 868 824 (Immig. Ct.
24 Hartford, CT Nov. 28, 2006). We assume the parties’
25 familiarity with the underlying facts and procedural history
26 in this case.
27 Under the circumstances of this case, we review the
28 decision of the IJ as supplemented by the BIA. See Yan Chen
2
1 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
2 applicable standards of review are well-established. See
3 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
4 510, 513 (2d Cir. 2009).
5 Substantial evidence supports the agency’s denial of
6 petitioners’ application for relief. The agency reasonably
7 determined that petitioners did not suffer past persecution
8 because the anonymous threats they received, without more,
9 constituted harassment that does not rise to the level of
10 persecution. See Ivanishvili v. U.S. Dep’t of Justice, 433
11 F.3d 332, 341 (2d Cir. 2006). The agency also reasonably
12 determined that petitioners did not have a well-founded fear
13 of future persecution because Wilfredo, the lead applicant
14 before the agency, has been retired from his post as
15 prosecutor for several years and nothing in the record
16 indicated that he would still be a target if he returned to
17 Peru. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d
18 Cir. 2005) (holding that a fear is not objectively
19 reasonable if it lacks “solid support” in the record and is
20 merely “speculative at best.”). Although Wilfredo testified
21 that former prosecutors in Peru had been killed years after
22 their retirement, he provided no evidence that this had been
3
1 the case. See Tun v. INS, 445 F.3d 554, 568 (2d Cir. 2006).
2 Moreover, substantial evidence supports the agency’s
3 determination that, even if petitioners demonstrated past
4 persecution or a well-founded fear of future persecution,
5 they failed to demonstrate that the government was or would
6 be unable or unwilling to control the alleged persecutors.
7 See Ivanishvili, 433 F.3d at 342. Contrary to petitioners’
8 assertions that the government could not provide assistance,
9 Peruvian officials investigated the written threat left at
10 Wilfredo’s home, assigned guards to him for approximately
11 three months, and arranged a transfer for him to a different
12 town. With respect to the subsequent phone threats
13 petitioners received, they failed to report them to police.
14 Thus, the agency reasonably determined that petitioners
15 failed to demonstrate the government’s inability or
16 unwillingness to control the alleged persecutors. See id.
17 Because petitioners were unable to meet their burden of
18 proof for asylum, their withholding of removal claim
19 necessarily fails. See Paul v. Gonzales, 444 F.3d 148, 156
20 (2d Cir. 2006).
21 To the extent petitioners challenge the IJ’s denial of
22 their request for CAT relief, we are without jurisdiction to
23 consider that argument as they failed to exhaust that claim
4
1 before the BIA. See 8 U.S.C. § 1252(d)(1); Karaj v.
2 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006). We dismiss the
3 petition for review to that extent.
4 For the foregoing reasons, the petition for review is
5 DENIED in part and DISMISSED in part. As we have completed
6 our review, any stay of removal that the Court previously
7 granted in this petition is VACATED, and any pending motion
8 for a stay of removal in this petition is DISMISSED as moot.
9 Any pending request for oral argument in this petition is
10 DENIED in accordance with Federal Rule of Appellate
11 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
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