Soares v. Holder , 452 F. App'x 36 ( 2011 )

10-3010-ag
Soares v. Holder
BIA
Straus, IJ
A074 916 028
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 19th day of December, two thousand eleven.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11
12 _______________________________________
13
14 SIMONE MARIA SOARES,
15
16 Petitioner,
17
18 v. 10-3010-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Glenn L. Formica, New Haven,
26 Connecticut.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Douglas E. Ginsburg,
1 Assistant Director; Laura Halliday
2 Hickein, Trial Attorney, Office of
3 Immigration Litigation, Civil
4 Division, United States Department
5 of Justice, Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Simone Maria Soares, a native and citizen of
12 Brazil, seeks review of a June 28, 2010, order of the BIA
13 affirming the October 2, 2008, decision of Immigration Judge
14 (“IJ”) Michael W. Straus pretermitting her application for
15 asylum and denying her applications for withholding of
16 removal and relief under the Convention Against Torture
17 (“CAT”). In re Simone Maria Soares, No. A074 916 028
18 (B.I.A. June 28, 2010), aff’g No. A074 916 028 (Immig. Ct.
19 Hartford, CT Oct. 2, 2008). We assume the parties’
20 familiarity with the underlying facts and procedural history
21 in this case.
22 Under the circumstances of this case, we have reviewed
23 both the IJ’s and the BIA’s decisions. See Zaman v.
24 Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The applicable
25 standards of review are well established. See 8 U.S.C.
2
1 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
2 (2d Cir. 2009).
3 With respect to Soares’s claim for withholding of
4 removal,1 the IJ found, inter alia, that she failed to
5 demonstrate that the Brazilian authorities were unwilling to
6 control the threats and harassment directed towards Soares
7 by Marcos Geovani Bento (“Mazar”). See Ivanishvili v. U.S.
8 Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006) (holding
9 that a petitioner may establish her eligibility for relief
10 by showing that she was persecuted by “private actors who
11 behave with impunity in the face of government reluctance to
12 intervene”). The BIA affirmed this finding on appeal.
13 However, Soares fails to raise this issue in her brief
14 before this Court, and therefore abandons any challenge to
15 the agency’s dispositive determination. In any event,
16 Soares testified before the IJ that the Brazilian police had
17 apprehended Mazar, questioned him, and threatened him with
18 arrest if he attempted to contact her in the future. The
19 agency therefore did not err in denying Soares’s claim for
20 withholding of removal. See Ivanishvili, 433 F.3d at 342.
1
Soares did not challenge the IJ’s pretermission of her
asylum application as untimely before the BIA, nor does she do
so in her brief to this Court.
3
1 With respect to her claim for CAT relief, Soares argues
2 that it is more likely than not that she will be tortured by
3 Mazar with the acquiescence of the government if returned to
4 Brazil. See 8 C.F.R. § 1208.18(a)(7); see also Khouzam v.
5 Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (“In terms of
6 state action, torture requires only that government
7 officials know of or remain willfully blind to an act and
8 thereafter breach their legal responsibility to prevent
9 it.”). However, as noted above, her argument is belied by
10 the fact that the authorities in Brazil have taken concrete
11 steps to prevent Mazar’s harassment. The BIA therefore did
12 not err in denying Soares’s application for CAT relief
13 because it reasonably determined that Soares failed to
14 demonstrate the requisite government acquiescence. See
15 Khouzam, 361 F.3d at 171.
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot. Any pending request for
21 oral argument in this petition is DENIED in accordance with
22 Federal Rule of Appellate Procedure 34(a)(2), and Second
4
1 Circuit Local Rule 34.1(b).
2 FOR THE COURT:
3 Catherine O’Hagan Wolfe, Clerk
4
5
5