11-3985
Hernandez-Garcia v. Holder
BIA
Vomacka, IJ
A088 673 392
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 28th day of June, two thousand twelve.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 ROBERT A. KATZMANN,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 ______________________________________
12
13 NASARIA HERNANDEZ-GARCIA, AKA NAZARIA
14 HERNANDEZ-GARCIA,
15 Petitioner,
16 11-3985
17 v. NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Mario DeMarco, Law Office of Mario
25 DeMarco, P.C., Port Chester, New
26 York.
27
28 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
29 Attorney General; Blair T. O’Connor,
30 Assistant Director; Remi Da Rocha-
31 Afodu, Attorney, Office of
32 Immigration Litigation, Civil
33 Division, United States Department
34 of Justice, Washington, D.C.
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 DENIED.
5 Petitioner Nasaria Hernandez-Garcia, a native and
6 citizen of Guatemala, seeks review of a September 6, 2011,
7 decision of the BIA, dismissing her appeal from the August
8 9, 2010, decision of Immigration Judge (“IJ”) Alan A.
9 Vomacka, which denied her application for asylum,
10 withholding of removal, and protection under the Convention
11 Against Torture (“CAT”). In re Nasaria Hernandez-Garcia,
12 No. A088 673 392 (B.I.A. Sept. 6, 2011), aff’ing, No. A088
13 673 392 (Immig. Ct. N.Y.C. Aug. 9, 2010). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history of the case.
16 Under the circumstances presented, we review both the
17 IJ’s and the BIA’s decisions “for the sake of completeness.”
18 Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). The
19 applicable standards of review are well established. See,
20 e.g., Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.
21 2008).
22
2
1 Hernandez-Garcia challenges first the IJ’s credibility
2 determination. As the Government correctly asserts,
3 however, because she did not raise this argument in her
4 appeal to the BIA, it is unexhausted and we will not
5 consider it. See Lin Zhong v. U.S. Dep’t of Justice, 480
6 F.3d 104, 122-23 (2d Cir. 2007). Next, Hernandez-Garcia
7 contends that, in determining that she failed to produce
8 sufficient corroborating evidence to support her claims for
9 relief, the agency failed to adhere to the rule articulated
10 in Diallo v. I.N.S., 232 F.3d 279, 290 (2d Cir. 2000), that
11 requires the agency to identify what specific evidence
12 should have been submitted and explain why it was reasonable
13 to expect that such evidence was available. Yet this rule
14 is applicable only “when the IJ or BIA cites inadequate
15 corroboration as a basis for denying relief to an applicant
16 who is otherwise credible.” Xiao Ji Chen v. U.S. Dep’t of
17 Justice, 471 F.3d 315, 341 (2d Cir. 2006) (internal
18 quotation marks and brackets omitted). Here, by comparison,
19 the IJ found that Hernandez-Garcia was not “otherwise
20 credible,” id., so he had no obligation to identify what
21 specific corroborating evidence should have been submitted.
22
3
1 Finally, contrary to Hernandez-Garcia’s assertions, we
2 conclude that substantial evidence supports the agency’s
3 determination that the mistreatment she suffered did not
4 rise to the level of persecution. See Ivanishvili v. U.S.
5 Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006) (to
6 constitute persecution, the harm suffered must be
7 sufficiently severe, rising above “mere harassment”).
8 Although the February 2007 home-invasion incident was
9 undoubtedly traumatic, Hernandez-Garcia does not allege that
10 she sustained any physical injuries, and the remainder of
11 the record evidence shows only that she was the victim of
12 various verbal threats. Cf. Jian Qiu Liu v. Holder, 632
13 F.3d 820, 821-22 (2d Cir. 2011) (per curiam) (upholding the
14 agency’s determination that slaps, repeated punches, and a
15 short detention did not amount to persecution where there
16 were “no lasting physical effect[s]”).
17 Together, these facts validate the agency’s
18 determination that Hernandez-Garcia did not suffer past
19 persecution, and, because she therefore is not entitled to a
20 regulatory presumption of a well-founded fear of future
21 persecution based on these same events, see 8 C.F.R. §
22 208.13(b)(1), the agency did not err by denying her claims
4
1 for asylum and withholding of removal, see Paul v. Gonzales,
2 444 F.3d 148, 156 (2d Cir. 2006).1
3 For the foregoing reasons, the petition for review is
4 DENIED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
9
10
1
In her brief to this Court, Hernandez-Garcia does
not challenge the IJ’s denial of her claims for CAT
relief. Even if she did, we would lack jurisdiction to
consider such a challenge, since she did not raise the
issue in her appeal to the BIA. See, e.g., Karaj v.
Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
5