Garcia-Ramirez v. Holder ( 2011 )

10-30-ag
Garcia-Ramirez v. Holder
BIA
Videla, IJ
A088 016 618/619
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 5th day of April, two thousand eleven.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 ELIZABETH ZUMARI GARCIA-RAMIREZ,
14 KATHERINE XIOMARA GRANADOS GARCIA
15 Petitioners,
16
17 v. 10-30-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONERS: Bruno Joseph Bembi, Hempstead, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Daniel E. Goldman, Senior
29 Litigation Counsel; Paul T.
1 Cygnarowicz, Trial Attorney, Office
2 of Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED, that the petition for review
9 is DENIED.
10 Elizabeth Zumari Garcia-Ramirez (“Garcia”) and her
11 daughter Katherine Xiomara Granados Garcia, natives and
12 citizens of El Salvador, seek review of a December 8, 2009,
13 order of the BIA affirming the August 18, 2008, decision of
14 Immigration Judge (“IJ”) Gabriel C. Videla, which denied
15 their application for asylum, withholding of removal, and
16 relief under the Convention Against Torture (“CAT”). In re
17 Garcia-Ramirez, Nos. A088 016 618/619 (B.I.A. Dec. 8, 2009),
18 aff’g Nos. A088 016 618/619 (Immig. Ct. N.Y. City Aug. 18,
19 2008). We assume the parties’ familiarity with the
20 underlying facts and procedural history in this case.
21 Under the circumstances of this case, we review the
22 decision of the IJ as supplemented by the BIA. See Yan Chen
23 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
24 applicable standards of review are well-established. See
25 Salimatou Bah v. Mukasey, 529 F.3d 99, 110-11 (2d Cir.
2
1 2008); Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).
2 The only issue before us is whether the agency erred in
3 denying Garcia’s application for asylum and withholding, as
4 Garcia has not challenged her denial of CAT relief in this
5 Court.
6 Garcia challenges the agency’s determination that she
7 failed to show that the harm she suffered constituted
8 persecution. The BIA has defined persecution as a “threat
9 to the life or freedom of, or the infliction of suffering or
10 harm upon, those who differ in a way regarded as offensive.”
11 Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985),
12 overruled in part on other grounds, INS v. Cardoza-Fonseca,
13 480 U.S. 421 (1987); accord Ivanishvili v. U.S. Dep’t of
14 Justice, 433 F.3d 332, 342 (2d Cir. 2006). The harm or
15 suffering must be inflicted in order to punish the
16 individual for possessing a belief or characteristic the
17 persecutor seeks to overcome, and inflicted either by the
18 government of a country or by persons or an organization
19 that the government is unable or unwilling to control.
20 Acosta, 19 I. & N. Dec. at 222; see also Pavlova v. INS, 441
21 F.3d 82, 91 (2d Cir. 2006). In addition, the harm must be
22 sufficiently severe, rising above “mere harassment.”
23 Ivanishvili, 433 F.3d at 341.
3
1 Here, the agency reasonably found that the threats
2 against Garcia were insufficiently severe to constitute
3 persecution. See id. As the agency noted, Garcia claimed
4 only that her sister’s mother-in-law held her responsible
5 for Frederico Zelada’s death, and that she received three
6 vague telephone calls. Garcia had one conversation at
7 Zelada’s funeral with her sister’s mother-in-law, in which
8 the mother-in-law said that Garcia must be happy about what
9 happened to Zelada, and thereafter, Garcia heard from her
10 sister that the mother-in-law was looking for her address.
11 Garcia also received three telephone calls at her home in
12 which someone asked for her by name, and asked whether she
13 lived there. These incidents were the sum total of the
14 threats against Garcia, and the agency did not err in
15 finding that these threats did not amount to persecution.
16 See id.
17 Even if Garcia had suffered persecution, as the agency
18 found, there is no evidence that it was on account of a
19 statutorily protected ground. See 8 U.S.C. § 1101(a)(42).
20 In addition to showing past persecution or a well-founded
21 fear of persecution, asylum eligibility requires that the
22 persecution be on account of the applicant’s race, religion,
23 nationality, political opinion, or particular social group.
4
1 Id. In order to establish eligibility for asylum based on
2 membership in a particular social group, the applicant must
3 establish both that the group itself was cognizable (i.e.,
4 defined with sufficient particularity and socially visible),
5 see Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007),
6 and that the alleged persecutors targeted the applicant “on
7 account of” her membership in that group, see 8 U.S.C.
8 § 1101(a)(42). In this case, Garcia argues that she is a
9 member of a group consisting of “relative[s] of a battered
10 woman accused of the death of the abuser by his relatives.”
11 A “particular social group is comprised of individuals who
12 possess some fundamental characteristic in common which
13 serves to distinguish them in the eyes of a persecutor-or in
14 the eyes of the outside world in general.” Ucelo-Gomez, 509
15 F.3d at 73 (internal quotation marks omitted). Garcia did
16 not testify that there were other members of her group, nor
17 did she testify as to why her sister’s mother-in-law accused
18 her of Zelada’s death, although she did testify that his
19 death was likely on account of his debts, and unrelated to
20 his abuse of her sister. Garcia did not testify as to why
21 she believed that the accusation by her sister’s mother-in-
22 law was a result of her relationship to her sister, a
23 battered woman. Consequently, she did not meet her burden
24 of showing that her status as the relative of a battered
5
1 woman distinguished her in the eyes of her sister’s mother-
2 in-law. Moreover, “although the existence of persecution is
3 a relevant factor, a social group cannot be defined
4 exclusively by the fact that its members have been subjected
5 to harm.” Ucelo-Gomez, 509 F.3d at 73 (internal quotation
6 marks and emphasis omitted). In this case, the group Garcia
7 describes is defined exclusively by the harm she suffered -
8 the accusation made by her sister’s mother-in-law.
9 Garcia also argues briefly that she was persecuted on
10 account of her imputed political opinion, because “[i]n the
11 eyes of Ms. Zelada, her belief and opposition to her
12 sister’s relationship with her son, was the cause of his
13 death and the main reason for the threats and intimidation
14 that she was carrying out against her.” However, as
15 discussed above, Garcia did not meet her burden of
16 demonstrating that her sister’s mother-in-law believed
17 Zelada’s death was a result of his abuse of Garcia’s sister,
18 or a result of Garcia’s opposition to that abuse. As a
19 result, substantial evidence supports the agency’s finding
20 that Garcia’s dispute was personal, and not on account of
21 any statutorily protected ground. See 8 U.S.C.
22 § 1101(a)(42).
23 Because the agency reasonably concluded that Garcia did
6
1 not suffer past persecution on account of a protected
2 ground, she is not entitled to a presumption of future
3 persecution. See 8 C.F.R. § 208.13(b)(1). Furthermore,
4 Garcia makes no argument concerning a fear of future
5 persecution independent from the incidents that occurred in
6 the past. Moreover, after the telephone calls to her home
7 began, Garcia moved to a city approximately two and one-half
8 hours away, where she lived for about seven months without
9 receiving any further threats or telephone calls. As a
10 result, even if Garcia had a well-founded fear of future
11 persecution if she were to return to El Salvador, the record
12 shows that she could avoid persecution by relocating to
13 another part of the country. See 8 C.F.R.
14 § 208.13(b)(2)(ii).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any pending motion
17 for a stay of removal in this petition is DISMISSED as moot.
18
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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