Aquino v. Holder

11-87-ag
Aquino v. Holder
BIA
Vomacka, IJ
A098 647 469
A098 647 450
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 New
4 York, on the 25th day of May, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT D. SACK,
10 REENA RAGGI,
11 Circuit Judges.
12 _____________________________________
13
14 FATIMA EVANGELISTA CEN AQUINO,
15 J. RAPHAEL RAY CEN AQUINO,
16 Petitioners,
17
18 v. 11-87-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONERS: Felix Q. Vinluan, Law Office of Felix
26 Q. Vinluan, New York, New York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney General;
29 John S. Hogan, Senior Litigation
1 Counsel; Edward E. Wiggers, Trial
2 Attorney, Office of Immigration
3 Litigation, United States Department of
4 Justice, 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 DISMISSED in part and DENIED in part.
10 Petitioners Fatima Evangelista Cen Aquino (“Aquino”) and
11 J. Raphael Ray Cen Aquino, natives and citizens of the
12 Philippines, seek review of a December 3, 2010, decision of
13 the BIA affirming the May 26, 2009, decision of Immigration
14 Judge (“IJ”) Alan A. Vomacka denying Aquino’s application for
15 asylum and withholding of removal. In re Fatima Evangelista
16 Cen Aquino, J. Raphael Ray Cen Aquino, Nos. A098 647 469/450
17 (B.I.A. Dec. 3, 2010), aff’g Nos. A098 647 469/450 (Immig. Ct.
18 N.Y. City May 26, 2009). We assume the parties’ familiarity
19 with the underlying facts and procedural history of the case.
20 Under the circumstances of this case, we have considered
21 both the IJ’s and the BIA’s opinions for the sake of
22 completeness. Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d
23 Cir. 2006). The applicable standards of review are well-
24 established. See 8 U.S.C. § 1252(b)(4)(B); Aliyev v. Mukasey,
25 549 F.3d 111, 115 (2d Cir. 2008).
2
1 I. Asylum
2 The agency denied Aquino’s asylum application as untimely
3 filed, and concluded that Aquino did not qualify for any
4 exceptions to the statutory filing deadline. This Court lacks
5 jurisdiction to review these determinations. See 8 U.S.C.
6 § 1158(a)(3) (placing agency determinations as to the
7 timeliness of an asylum application beyond judicial review);
8 see also Gui Yin Liu v. INS, 508 F.3d 716, 720 (2d Cir. 2007).
9 While we retain jurisdiction to review “constitutional claims
10 or questions of law,” 8 U.S.C. § 1252(a)(2)(D), Aquino has
11 raised no such arguments in her brief. Accordingly, we
12 dismiss for lack of subject matter jurisdiction the portion of
13 Aquino’s petition seeking to review the agency’s denial of her
14 asylum claim.
15 II. Withholding of Removal
16 Persecution is a “threat to the life or freedom of, or
17 the infliction of suffering or harm upon, those who differ in
18 a way regarded as offensive.” Matter of Acosta, 19 I. & N.
19 Dec. 211, 222 (BIA 1985), overruled, in part, on other
20 grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); accord
21 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d
22 Cir. 2006). The harm or suffering must be inflicted in order
3
1 to punish the individual for having a belief or characteristic
2 the persecutor seeks to overcome, and inflicted either by the
3 government of a country or by persons or an organization that
4 the government is unable or unwilling to control. Acosta, 19
5 I. & N. Dec. at 222; see also Pavlova v. INS, 441 F.3d 82, 85
6 (2d Cir. 2006). Such harm must be sufficiently severe, rising
7 above “mere harassment.” Ivanishvili, 433 F.3d at 341.
8 Here, the agency reasonably found that the mistreatment
9 experienced by Aquino in the Philippines did not rise to the
10 level of persecution. Aquino testified that armed members of
11 the security forces in the Philippines came to her home asking
12 for the whereabouts of her husband, who had gone into hiding
13 after being accused of organizing a coup, and that the
14 security forces followed her to her son’s school and stopped
15 their car on several occasions. None of the incidents
16 described by Aquino rise above “mere harassment.” Ivanishvili,
17 433 F.3d at 341; see Mei Fun Wong v. Holder, 633 F.3d 64, 72
18 (2d Cir. 2011) (“We have emphasized that persecution is an
19 extreme concept that does not include every sort of treatment
20 that our society regards as offensive.”) (internal citation
21 and quotation marks omitted). Although Aquino also testified
22 that security forces once threatened to kill her and her son
4
1 if they did not find her husband, substantial evidence
2 supports the agency’s conclusion that the encounter did not
3 rise above mere harassment.
4 Aquino argues that the agency erred in failing to
5 consider whether the psychological harm she experienced in the
6 Philippines rises to the level of persecution. But the IJ
7 expressly considered the possibility that Aquino might have
8 experienced persecution in the form of psychological harm, and
9 rejected it. Accordingly, substantial evidence supports the
10 agency’s conclusion that Aquino did not establish that she had
11 experienced past persecution in the Philippines.
12 The agency also determined that Aquino failed to
13 demonstrate that she had a well-founded fear of future
14 persecution in the Philippines. Aquino’s expert witness
15 described an incident in which security forces rounded up and
16 briefly detained the families of former military personnel who
17 had gone into hiding after attempting a mutiny, in order to
18 compel the military personnel to surrender. However, brief
19 periods of detention do not constitute persecution. See
20 Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir. 2006).
21 Furthermore, the agency reasonably concluded that Aquino was
22 not likely to be subject to surveillance and detention to find
5
1 the whereabouts of her husband, who was arrested and convicted
2 of espionage in the United States, and whom the Philippines
3 was seeking to extradite.
4 Finally, Aquino does not challenge the agency’s
5 determination that she failed to demonstrate that she was, or
6 would be, mistreated in the Philippines on account of a
7 protected ground.
8 For the foregoing reasons, the petition for review is
9 DISMISSED in part and DENIED in part. As we have completed
10 our review, any stay of removal that the Court previously
11 granted in this petition is VACATED, and any pending motion
12 for a stay of removal in this petition is DISMISSED as moot.
13 Any pending request for oral argument in this petition is
14 DENIED in accordance with Federal Rule of Appellate Procedure
15 34(a)(2), and Second Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
6