10-3720-ag
Villeda v. Holder
BIA
Verillo, IJ
A071 496 811
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 27th day of October, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 GILBERTO VILLEDA, AKA HUMBERTO
14 VILLEDA,
15 Petitioner,
16
17 v. 10-3720-ag
18 NAC
19 ERIC H. HOLDER JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jon E. Jessen, Stamford, CT.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Terri J. Scadron, Assistant
28 Director; Wendy Benner-León, Trial
29 Attorney, Office of Immigration
1 Litigation, Civil Division, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
8 review is DENIED.
9 Petitioner Gilberto Villeda, a native and citizen of
10 Guatemala, seeks review of an August 17, 2010, decision of
11 the BIA affirming the November 19, 2008, decision of
12 Immigration Judge (“IJ”) Philip Verrillo denying Villeda’s
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Gilberto
15 Villeda, No. A071 496 811 (B.I.A. Aug. 17, 2010), aff’g No.
16 A071 496 811 (Immig. Ct. Hartford, Nov. 19, 2008). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history of the case.
19 Under the circumstances of this case, we have
20 considered both the IJ’s and the BIA’s opinions “for the
21 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
22 (2d Cir. 2008). The applicable standards of review are
23 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
24 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
1 Because Villeda did not argue before the agency that he
2 suffered persecution in the form of forced conscription by
3 the Guatemalan army or that he was harmed on account of his
4 membership in a particular social group of young male
5 peasants, those arguments are unexhausted. In addition to
6 the statutory requirement that petitioners exhaust the
7 categories of relief they seek, 8 U.S.C. § 1252(d)(1),
8 petitioners must also raise to the BIA the specific issues
9 they later raise in this Court. See Foster v. INS, 376 F.3d
10 75, 78 (2d Cir. 2004). While not jurisdictional, this
11 judicially imposed exhaustion requirement is mandatory. Lin
12 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
13 Cir. 2007). Accordingly, because the government has raised
14 Villeda’s failure to exhaust, we decline to consider these
15 arguments. See id. at 124 (describing the issue exhaustion
16 requirement as an “affirmative defense subject to waiver”).
17 Villeda does not raise any exhausted challenge to the
18 agency’s past persecution finding. See Yueqing Zhang v.
19 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)
20 (concluding that issues not sufficiently argued in the
21 briefs are considered waived and normally will not be
22 addressed on appeal). In addition, Villeda explicitly
3
1 abandons any challenge to the agency’s denial of relief
2 based on his claimed fear of future harm by gangs.
3 Accordingly, because Villeda does not challenge the agency’s
4 findings that he failed to establish past persecution by
5 guerillas in Guatemala or a well-founded fear of persecution
6 on account of his membership in a particular social group of
7 Guatemalans returning from the United States who are
8 perceived as wealthy, and because those findings were
9 dispositive of his applications for asylum and withholding
10 of removal, we will not disturb the agency’s denial of
11 relief on those bases. See Paul v. Gonzales, 444 F.3d 148,
12 156 (2d Cir. 2006) (recognizing that a withholding of
13 removal claim necessarily fails if the applicant is unable
14 to show the objective likelihood of persecution needed to
15 make out an asylum claim and the factual predicate for the
16 claims is the same).
17 Although Villeda argues that he is eligible for CAT
18 relief because a U.S. Department of State country report
19 describes incidents of torture in Guatemala, he did not
20 raise this argument before the agency, see Foster, 376 F.3d
21 at 78, and has not offered any argument or pointed to any
22 evidence that someone in his particular alleged
4
1 circumstances would face torture, see Mu Xiang Lin v. U.S.
2 Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
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