11-1968-ag
Boveda v. Holder
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 21st day of February, two thousand twelve.
5
6 PRESENT: BARRINGTON D. PARKER,
7 RICHARD C. WESLEY,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10
11
12 CAROLINA ELIZABET BOVEDA, FLORENCIA
13 ANDREA BOVEDA,
14 Petitioners,
15
16 v. 11-1968-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21
22
23
24 FOR PETITIONER: MATTHEW L. KOLKEN, Kolken & Kolken,
25 Buffalo, New York.
26
27 FOR RESPONDENT: TONY WEST, Assistant Attorney
28 General (Terri J. Scadron, Assistant
29 Director, Siu P. Wong, Trial
30 Attorney, Office of Immigration
31 Litigation, on the brief), for Eric
32 H. Holder, Jr., United States
33 Attorney General, Washington, D.C.
34
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DISMISSED, in part, and DENIED, in part.
5 Petitioners Carolina Elizabet Boveda and Florencia
6 Andrea Boveda, sisters, natives and citizens of Argentina,
7 seek review of an April 21, 2011 order of the BIA, affirming
8 a March 20, 2009 decision of Immigration Judge (“IJ”) Philip
9 J. Montante, Jr., which pretermitted their applications for
10 asylum and denied their applications for withholding of
11 removal and relief under the Convention Against Torture
12 (“CAT”). In re Carolina Elizabet Boveda, Florencia Andrea
13 Boveda, Nos. A099 757 097/098 (B.I.A. Apr. 21, 2011), aff’g
14 Nos. A099 757 097/098 (Immig. Ct. Buffalo Mar. 20, 2009).
15 We assume the parties’ familiarity with the underlying
16 facts, procedural history, and issues presented for review.
17 Under the circumstances of this case, we review the
18 IJ’s decision as supplemented by the BIA. See Ming Xia Chen
19 v. Bd. of Immigration Appeals, 435 F.3d 141, 144 (2d Cir.
20 2006). The applicable standards of review are
21 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
22 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
1 We do not have jurisdiction to review the agency’s
2 finding that Petitioners’ asylum applications were untimely
3 under 8 U.S.C. § (a)(2)(B), or its finding of neither
4 changed nor extraordinary circumstances excusing the
5 untimeliness under 8 U.S.C. § 1158(a)(2)(D). See 8 U.S.C. §
6 1158(a)(3). Although we retain jurisdiction to review
7 questions of law and constitutional claims, 8 U.S.C. §
8 1252(a)(2)(D), Petitioners’ challenge to the IJ’s finding
9 that they did not establish changed circumstances is simply
10 a challenge to the agency’s fact-finding, over which we do
11 not have jurisdiction. Accordingly, we dismiss the petition
12 with respect to asylum and address only Petitioners’
13 challenge to the denial of withholding of removal and CAT
14 relief.
15 The agency did not err in finding that the harm
16 Petitioners suffered in Argentina did not rise to the level
17 of persecution. See Ivanishvili v. U.S. Dep’t of Justice,
18 433 F.3d 332, 341-42 (2d Cir. 2006). Here, Carolina
19 described an incident in 2000 where a man grabbed her arm
20 and threatened her. This did not “rise above mere
21 harassment.” Tian-Yong Chen v. U.S. Immigration and
22 Naturalization Serv., 359 F.3d 121, 128 (2d Cir. 2004)
23 (internal quotation marks and citations omitted).
3
1 Similarly, while Petitioners argue that they have indirectly
2 received threats from their uncle, courts have “rejected
3 [persecution] claims involving ‘unfulfilled’ threats.” Gui
4 Ci Pan v. U.S. Attorney Gen., 449 F.3d 408, 412 (2d Cir.
5 2006) (citations omitted). Although Petitioners assert that
6 the kidnaping of their father rose to the level of
7 persecution, as the agency correctly noted, persecution of
8 family members cannot form the basis for a finding of past
9 persecution of Petitioners. See Melgar de Torres v. Reno,
10 191 F.3d 307, 313 n.2 (2d Cir. 1999).
11 The agency also did not err in finding that Petitioners
12 failed to establish a well-founded fear of future
13 persecution. See Jian Xing Huang v. U.S. Immigration and
14 Naturalization Serv., 421 F.3d 125, 129 (2d Cir. 2005)
15 (holding that absent solid support in the record for the
16 petitioner’s assertion that he would be persecuted, his fear
17 was “speculative at best”). In making this determination,
18 the agency reasonably relied on the fact that their
19 similarly-situated sister, who is also a member of the New
20 Apostolic Church and not active in politics, has continued
21 to live in Argentina unharmed. See Melgar de Torres, 191
22 F.3d at 313. In addition, Petitioners failed to demonstrate
23 that their fear was objectively reasonable by supporting
4
1 their contention that their uncle was involved in human
2 trafficking with testimony of a single threat by an
3 individual who accosted Carolina and vague statements that
4 they learned about their uncle’s threats from their father.
5 See Jian Xing Huang, 421 F.3d at 128-29. There is also no
6 support for Petitioners’ contention that credible testimony
7 alone, regardless of its level of detail, is sufficient as a
8 matter of law to demonstrate entitlement to relief. See
9 Jian Hui Shao v. Mukasey, 546 F.3d 138, 162 (2d Cir. 2008)
10 (while “credible testimony was sufficient to demonstrate a
11 genuine subjective fear of future persecution, more was
12 needed to demonstrate the objective reasonableness of that
13 fear”). Under these circumstances, the agency did not err
14 in finding that Petitioners failed to establish a
15 well-founded fear of persecution. See Jian Xing Huang, 421
16 F.3d at 129; Melgar de Torres, 191 F.3d at 313.
17 Because Petitioners were unable to show either past
18 persecution or a clear probability of future persecution in
19 Argentina, the agency did not err in denying Petitioners’
20 applications for withholding of removal, as well as their
21 applications for CAT relief, as those claims were based on
22 the same factual predicate. See 8 C.F.R. § 1208.16(b)(1);
23 Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006);
24 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
5
1 For the foregoing reasons, the petition for review is
2 DISMISSED, in part, and DENIED, in part. As we have
3 completed our review, any stay of removal that the Court
4 previously granted in this petition is VACATED, and any
5 pending motion for a stay of removal in this petition is
6 DISMISSED as moot. Any pending request for oral argument in
7 this petition is DENIED in accordance with Federal Rule of
8 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
9 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
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