Velasquez-Velasquez v. Sessions

16-540
Velasquez-Velasquez v. Sessions
BIA
Straus, IJ
A206 735 389/390
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 6th day of April, two thousand seventeen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 INGRIS YAMILEH VELASQUEZ-VELASQUEZ,
14 FRANCIS NAZARETH GARCIA-VELAZQUEZ,
15 Petitioners,
16
17 v. 16-540
18 NAC
19 JEFFERSON B. SESSIONS III, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Gregory Osakwe, Hartford, CT.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Paul
28 Fiorino, Senior Litigation Counsel;
29 Deitz P. Lefort, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, DC.
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 is
4 DENIED.
5 Petitioners Ingris Yamileh Velasquez-Velasquez and her
6 daughter, Francis Nazareth Garcia-Velazquez, natives and
7 citizens of Honduras, seek review of a January 29, 2016,
8 decision of the BIA affirming an April 13, 2015, decision of
9 an Immigration Judge (“IJ”) denying asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). In re Ingris Yamileh Velasquez-Velasquez, Francis
12 Nazareth Garcia-Velazquez, Nos. A206 735 389/390 (B.I.A. Jan.
13 29, 2016), aff’g Nos. A206 735 389/390 (Immig. Ct. Hartford Apr.
14 13, 2015). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 We have reviewed the IJ’s and the BIA’s decisions “for the
17 sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,
18 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
19 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
20 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). We
21 find no error in the agency’s conclusions that
22 Velasquez-Velasquez failed to establish past persecution or a
23 well-founded fear of future persecution.
2
1 Past Persecution
2 A valid claim of past persecution may “encompass[] a
3 variety of forms of adverse treatment, including
4 non-life-threatening violence and physical abuse,” but the harm
5 must be sufficiently severe, rising above “mere harassment.”
6 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.
7 2006) (internal quotation marks omitted). Unfulfilled threats
8 alone do not constitute persecution. Gui Ci Pan v. U.S. Att’y
9 General, 449 F.3d 408, 412-13 (2d Cir. 2006); Guan Shan Liao
10 v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (stating
11 that “threat of detention . . . itself . . . is not past
12 persecution”).
13 The agency reasonably found that Velasquez-Velasquez did
14 not suffer persecution in Honduras as her claim rested solely
15 on a gang’s unfulfilled threats to harm her and her daughters
16 if she did not pay extortion money as a business owner. See
17 Gui Ci Pan, 449 F.3d at 412-13; Guan Shan Liao, 293 F.3d at 70.
18 Contrary to the assertion in her counseled brief, she did not
19 testify that gang members physically assaulted her or that she
20 reported a physical assault to police. Velasquez-Velasquez
21 used the word assault only once during her testimony (when asked
22 how police could locate gang members she had not identified);
23 she testified, “when I made the report . . . of the time they
3
1 assaulted me . . . at the store . . . they said there [was] not
2 enough proof[].” Velasquez-Velasquez never claimed that this
3 assault was physical rather than verbal and never provided any
4 facts that would indicate that she was physically attacked.
5 Likewise, the police report she submitted states that she
6 reported being threatened without mention of a physical attack.
7 Moreover, although Velasquez-Velasquez testified that
8 gang members robbed and beat her husband while he drove a taxi
9 in 2009, harm to a family member does not constitute persecution
10 unless the asylum applicant “shares . . . the characteristic
11 that motivated persecutors to harm the family member, [and] was
12 also within the zone of risk when the family member was harmed,
13 and suffered some continuing hardship after the incident.” Tao
14 Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007); see also
15 Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d
16 Cir. 2007) (concluding “that the statutory scheme unambiguously
17 dictates that applicants can become candidates for asylum
18 relief only based on persecution that they themselves have
19 suffered”). Velasquez-Velasquez did not assert that she was
20 present when her husband was harmed, or that she shared the same
21 characteristic that motivated his attackers to rob him. And,
22 although Velasquez-Velasquez testified that she accrued debt
23 due to her husband’s resulting injuries, she did not testify
4
1 to any facts showing a substantial economic disadvantage as
2 required for a claim of economic persecution (she was able to
3 rent a home, work for an international corporation, and start
4 a small business). See Guan Shan Liao, 293 F.3d at 70. Indeed,
5 as the Government argues, Velasquez-Velasquez failed to
6 articulate or exhaust an economic persecution claim before the
7 agency and thus we do not consider such a claim here. See Lin
8 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007).
9 Accordingly, because Velasquez-Velasquez claimed to have
10 personally suffered only unfulfilled threats, the agency did
11 not err in finding that she had not suffered persecution. See
12 Gui Ci Pan, 449 F.3d at 412-13; see also Mei Fun Wong v. Holder,
13 633 F.3d 64, 72 (2d Cir. 2011) (“We have emphasized that
14 persecution is an extreme concept that does not include every
15 sort of treatment our society regards as offensive.” (internal
16 quotation marks and citations omitted)).
17 Well-Founded Fear of Future Persecution
18 Absent past persecution, in order to establish a
19 well-founded fear of future persecution, an applicant must
20 “present credible testimony that [s]he subjectively fears
21 persecution and establish that h[er] fear is objectively
22 reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d
23 Cir. 2004). “An applicant does not have a well-founded fear
5
1 of persecution if the applicant could avoid persecution by
2 relocating to another part of the applicant’s country of
3 nationality . . . if under all the circumstances it would be
4 reasonable to expect the applicant to do so.” 8 C.F.R.
5 § 1208.13(b)(2)(ii). The agency did not err in determining
6 that Velasquez-Velasquez failed to establish that her fear of
7 harm was objectively reasonable.
8 Velasquez-Velasquez did not assert that anyone has
9 threatened or shown continued interest in her since she closed
10 her store and left Honduras. And two of her daughters, who
11 purportedly also were threatened, have remained unharmed in
12 Honduras. Accordingly, the agency did not err in finding her
13 fear of future harm speculative. See Melgar de Torres v. Reno,
14 191 F.3d 307, 313 (2d Cir. 1999) (finding future fear diminished
15 when similarly situated individuals are able to live unharmed
16 in asylum applicant’s native country); see also Jian Xing Huang
17 v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of
18 solid support in the record . . . , [an applicant’s] fear is
19 speculative at best.”).
20 Moreover, the agency did not err in finding that
21 Velasquez-Velasquez could safely relocate to the capital of
22 Honduras as her daughters had done. See 8 C.F.R.
23 § 1208.13(b)(2)(ii). Her explanations that she had never
6
1 lived in the capital, did not have a house there, and could not
2 leave her children alone there were not compelling given that
3 she had moved to the United States where she had never lived
4 and did not have a house and allowed two of her daughters to
5 move to the Honduran capital with her sister. See 8 C.F.R.
6 § 1208.13(b)(2)(ii); see also Singh v. BIA, 435 F.3d 216, 219
7 (2d Cir. 2006) (“Asylum in the United States is not available
8 to obviate re-location to sanctuary in one’s own country.”).
9 Because Velasquez-Velasquez failed to demonstrate an
10 objectively reasonable fear of persecution, the agency did not
11 err in denying her asylum, withholding of removal, and CAT
12 relief because all three claims were based on the same factual
13 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
14 2006). Accordingly, we do not reach the agency’s alternative
15 basis for denying asylum and withholding of removal—its
16 determination that Velasquez-Velasquez failed to demonstrate
17 that the harm she fears is on account of a protected ground.
18 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general
19 rule courts and agencies are not required to make findings on
20 issues the decision of which is unnecessary to the results they
21 reach.”).
22 For the foregoing reasons, the petition for review is
23 DENIED. As we have completed our review, any stay of removal
7
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition
3 is DISMISSED as moot. Any pending request for oral argument
4 in this petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
8