Martin v. Sessions ( 2018 )

15-3840
Martin v. Sessions
BIA
Segal, IJ
A079 252 661
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 5th day of February, two thousand eighteen.
PRESENT: ROSEMARY S. POOLER,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_____________________________________
FABIAN R. MARTIN, AKA FABIAN
RODRIGO MARTIN-BELTRAN,
Petitioner,
v. 15-3840
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Samuel N. Iroegbu, Albany, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Anthony
P. Nicastro, Assistant Director;
Linda Y. Cheng, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DISMISSED IN PART and DENIED IN PART.
Petitioner Fabian Martin, a native and citizen of
Colombia, seeks review of the BIA’s affirmance of an
Immigration Judge’s (“IJ’s”) denial of asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Fabian R. Martin, No. A079 252 661 (B.I.A.
Oct. 28, 2015), aff’g No. A079 252 661 (Immig. Ct. N.Y.C.
Mar. 12, 2014). Under the circumstances of this case, we
review the IJ’s decision as supplemented by the BIA, see Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005), applying
well-established standards of review, see 8 U.S.C. §
1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009). In so doing, we assume the parties’ familiarity
with the underlying facts and procedural history of this case,
which we reference only as necessary to explain our decision
to deny the petition in part and to dismiss the petition in
part.
I. Asylum
We dismiss Martin’s petition as it relates to the
agency’s pretermission of his asylum application as untimely.
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An asylum application must be filed within one year of an
applicant’s arrival in the United States, absent changed or
extraordinary circumstances. See 8 U.S.C. § 1158(a)(2)(B),
(D). Although we lack jurisdiction to review the agency’s
pretermission of asylum on timeliness grounds, we retain
jurisdiction to review “constitutional claims or questions of
law.” 8 U.S.C. § 1252(a)(2)(D). In order to ascertain
whether a petitioner raises such a constitutional challenge
or question of law, we must determine “whether [the petition]
merely quarrels over the correctness of the factual finding
or justification for the discretionary choices, in which case
the court would lack jurisdiction.” Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
Martin’s assertion that the BIA failed to consider the
facts and circumstances of his case is contradicted by the
record and merely quarrels with the correctness of the
agency’s discretionary determination that he failed to file
his application within a reasonable time of what the agency
assumed to be an exceptional circumstance—Martin’s mistaken
belief that his 2002 application for adjustment of status was
an asylum application. See id. As the agency observed, even
if Martin mistakenly believed that his application to adjust
status was an asylum application, that application was denied
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in 2004, and Martin failed to pursue an asylum claim until
filing his asylum application more than 7 years later in 2012.
Moreover, while Martin now contends that he filed an asylum
application before applying to adjust status, he specifically
identified his adjustment application as what he believed to
be his prior asylum application. Because Martin fails to
raise a constitutional or legal challenge to the agency
pretermission of asylum, we lack jurisdiction to review that
determination.
II. Withholding of Removal
To establish eligibility for withholding of removal, an
applicant must show a likelihood that his “life or freedom
would be threatened in [Colombia] because of [his] race,
religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see
id. § 1101(a)(42); 8 C.F.R. § 1208.16(b). A showing of past
persecution creates a rebuttable presumption of a likelihood
of future persecution. See 8 C.F.R. § 1208.16(b)(1).
Although the Immigration and Nationality Act does not
define persecution, see Baba v. Holder, 569 F.3d 79, 85 (2d
Cir. 2009), the BIA has defined it as a “threat to the life
or freedom of, or the infliction of suffering or harm upon,
those who differ in a way regarded as offensive.” Matter of
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Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled in
part on other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421
(1987); accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
332, 342 (2d Cir. 2006). Past persecution can be based on
harm other than threats to life or freedom, including non-
life-threatening violence and physical abuse, see Beskovic v.
Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm
must be sufficiently severe to rise above “mere harassment,”
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d at 341. The
difference between harassment and persecution is “necessarily
one of degree that must be decided on a case-by-case basis.”
Id. Unfulfilled threats alone do not constitute persecution.
See Ci Pan v. U.S. Att’y General, 449 F.3d 408, 412-13 (2d
Cir. 2006).
First, the agency did not err in concluding that Martin
failed to establish past persecution. See Ivanishvili v.
U.S. Dep’t of Justice, 433 F.3d at 340-41. Given that
Martin’s testimony lacked any details regarding the beating
he asserted in his application, he did not testify that he
suffered any injuries or sought medical treatment, and any
threats he received were ultimately unfulfilled, the agency
did not err in concluding that Martin failed to establish
that his past harm rose to the level of persecution. See
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id.; Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011)
(finding no error in the agency’s determination that an alien
failed to establish past persecution when “he suffered only
minor bruising from an altercation with family planning
officials, which required no formal medical attention and had
no lasting physical effect”).
Second, Martin fails to challenge the agency’s
determination that he did not independently demonstrate a
likelihood of future persecution. This claim is therefore
waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
1998) (“Issues not sufficiently argued in the briefs are
considered waived and normally will not be addressed on
appeal.”).
Third, Martin also fails to challenge the BIA’s
determination that he did not establish a nexus between his
proposed social group—individuals who are persecuted by a
group the government of Colombia could not control—and the
harm he suffered and feared. He has therefore waived review
of this determination, which is entirely dispositive of his
withholding claim. See id.; Paloka v. Holder, 762 F.3d 191,
195 (2d Cir. 2014) (“To succeed on a particular social group
claim, the applicant must establish both that the group itself
was cognizable, and that the alleged persecutors targeted the
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applicant ‘on account of’ her membership in that group.”
(emphasis added) (citations omitted)).
Accordingly, because Martin did not show that he was
persecuted or would be persecuted, or that any harm would be
on account of his social group membership, the agency did not
err in denying withholding of removal. See Ivanishvili v.
U.S. Dep’t of Justice, 433 F.3d at 340-41; Paloka v. Holder,
762 F.3d at 195.
For the foregoing reasons, the petition for review is
DISMISSED in part for lack of jurisdiction as to asylum and
DENIED in remaining part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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