Cardona-Contreras v. Lynch , 634 F. App'x 816 ( 2015 )

14-2828
Cardona-Contreras v. Lynch
BIA
Verillo, IJ
A205 015 148
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 17th day of December, two thousand fifteen.
5
6 PRESENT:
7 PETER W. HALL,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 CARLOS ANTHONY CARDONA-CONTRERAS,
14 AKA CARLOS CARDONA, AKA CARLOS A.
15 CARDONA,
16 Petitioner,
17
18 v. 14-2828
19 NAC
20
21 LORETTA E. LYNCH, UNITED STATES
22 ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Elyssa N. Williams, Formica
27 Williams, P.C., New Haven,
28 Connecticut.
29
1 FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
2 Attorney General; Cindy S. Ferrier,
3 Assistant Director; Jessica E.
4 Sherman, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DENIED.
13 Petitioner Carlos Anthony Cardona-Contreras, a native and
14 citizen of Mexico, seeks review of a July 11, 2014, decision
15 of the BIA affirming a March 13, 2013, decision of an Immigration
16 Judge (“IJ”) denying Cardona-Contreras’s application for
17 asylum, withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Carlos Anthony
19 Cardona-Contreras, No. A205 015 148 (B.I.A. July 11, 2014),
20 aff’g No. A205 015 148 (Immig. Ct. Hartford Mar. 13, 2013). We
21 assume the parties’ familiarity with the underlying facts and
22 procedural history in this case.
23 Under the circumstances of this case, we review the IJ’s
24 decision as supplemented by the BIA. See Yan Chen v. Gonzales,
25 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of
2
1 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
2 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 Because Cardona-Contreras does not challenge the pretermission
4 of his asylum application as untimely, we address only his
5 eligibility for withholding of removal and CAT relief.
6 Persecution is “the infliction of suffering or harm upon
7 those who differ on the basis of a protected statutory ground.”
8 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.
9 2006). Past persecution can be based on harm other than threats
10 to life or freedom, including “non-life-threatening violence
11 and physical abuse.” Beskovic v. Gonzales, 467 F.3d 223, 226
12 n.3 (2d Cir. 2006). However, the harm must be sufficiently
13 severe to rise above “mere harassment.” Ivanishvili, 433 F.3d
14 at 341.
15 In this case, the agency reasonably found that
16 Cardona-Contreras was not persecuted. On one occasion, in
17 either 1988 or 1990, he was pushed and heard shots fired; this
18 is the only harm he endured in Mexico and it does not amount
19 to persecution. See Jian Qiu Liu v. Holder, 632 F.3d 820, 822
20 (2d Cir. 2011) (finding no error in BIA’s conclusion that an
21 applicant who was beaten and detained for two days did not
3
1 establish persecution because the injuries “required no formal
2 medical attention and had no lasting physical effect”).
3 While Cardona-Contreras argues that the murders of his
4 father and grandfather contribute to the cumulative harm he
5 suffered, which amounts to persecution, those deaths both
6 occurred before he was born. Accordingly, the murders of his
7 father and grandfather were not acts intended to harm or
8 threaten Cardona-Contreras. Cf. Jiang v. Gonzales, 500 F.3d
9 137, 142 (2d Cir. 2007) (recognizing that an applicant may be
10 able to demonstrate persecution based on persecution of family
11 members where the applicant “shares . . . the characteristic
12 that motivated persecutors to harm the family member,” “was in
13 the zone of risk when the family member was harmed,” and
14 “suffered some continuing hardship after the incident” (citing
15 Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006))).
16 In the absence of past persecution, to warrant withholding
17 of removal an applicant must show that it is more likely than
18 not that he will be persecuted in the country of removal.
19 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
20 Similarly, to warrant CAT relief, an applicant must show that
21 he more likely than not will be tortured if he is removed. See
4
1 8 C.F.R. §§ 1208.16(c), 1208.17; Khouzam v. Ashcroft, 361 F.3d
2 161, 168 (2d Cir. 2004). The agency did not err in concluding
3 that Cardona-Contreras has not shown that he will be persecuted
4 or tortured if he returns to Mexico. He presented no evidence
5 to show that anyone in Mexico sought to harm him, and after the
6 single incident in which he was pushed and shots were possibly
7 fired at him, he remained in Mexico until 1997 with no further
8 problems. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d
9 Cir. 2008) (per curiam); Mu Xiang Lin v. U.S. Dep’t of Justice,
10 432 F.3d 156, 160 (2d Cir. 2005).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, the pending motion
13 for a stay of removal in this petition is DISMISSED as moot.
14 FOR THE COURT:
15 Catherine O=Hagan Wolfe, Clerk
5