Ramirez-Galvez v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: July 17, 2020
• Docket: 18-912
• Status: Unpublished

Opinion

18-912 Ramirez-Galvez v. Barr BIA Verrillo, IJ A208 699 126 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 17th day of July, two thousand twenty.

PRESENT: REENA RAGGI, PETER W. HALL, DENNY CHIN, Circuit Judges. _____________________________________

GELSER ANTONIO RAMIREZ-GALVEZ, Petitioner,

v. 18-912 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Robert C. Ross, West Haven, CT.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Terri J. Scadron, Assistant Director; Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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 DENIED.

Petitioner Ramirez-Galvez, a native and citizen of

Guatemala, seeks review of a March 6, 2018, decision of the

BIA affirming an April 18, 2017, decision of an Immigration

Judge (“IJ”) denying Ramirez-Galvez’s application for asylum

and withholding of removal. In re Ramirez Galvez, No. A 208

699 126 (B.I.A. Mar. 6, 2018), aff’g No. A 208 699 126 (Immig.

Ct. Hartford Apr. 18, 2017). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

Under the circumstances of this case, we have reviewed

both the BIA’s and the IJ’s decisions. See Wangchuck v.

Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).

The standards of review are well-established. We review the

agency’s factual findings to determine if they are supported

by substantial evidence; we review questions of law and

application of law to fact de novo. See 8 U.S.C. §

1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

Cir. 2009). 2 As an initial matter, Ramirez-Galvez’s argument that the

agency lacked jurisdiction over his removal proceedings

because his notice to appear did not include a hearing date

or time is foreclosed by Banegas Gomez v. Barr, 922 F.3d 101

(2d Cir. 2019). There we “conclude[d] that an NTA that omits

information regarding the time and date of the initial removal

hearing is nevertheless adequate to vest jurisdiction in the

Immigration Court, at least so long as a notice of hearing

specifying the information is later sent to the alien.” Id.

at 112. There is no question that Ramirez-Galvez received

such notice.

Turning to the agency’s determination that he did not

qualify for asylum and withholding of removal, we find no

error in the agency’s conclusion that Ramirez-Galvez did not

establish past persecution or a well-founded fear of future

persecution.

The BIA has defined persecution 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

Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985). A past

persecution claim can be based on harm other than threats to

life or freedom, including “non-life-threatening violence and

physical abuse.” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 3 (2d Cir. 2006). In order to constitute persecution, the

alleged harm must be sufficiently severe, rising above “mere

harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d

332, 341 (2d Cir. 2006). “[T]he difference between

harassment and persecution is necessarily one of degree that

must be decided on a case-by-case basis.” Id. “The

cumulative effect of the applicant’s experience must be taken

into account” in deciding whether the applicant has suffered

persecution. Poradisova v. Gonzales, 420 F.3d 70, 80 (2d

Cir. 2005) (quotation marks omitted).

The agency did not err in finding that the two incidents,

one in which Ramirez-Galvez was punched in the stomach and

another two-minute beating did not rise to the level of

persecution. A beating is not “persecution per se;” instead,

the agency must consider the context, including whether the

beating occurred during an arrest or detention, the extent of

the resulting injuries, and the need for medical attention.

Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011); see

also Beskovic, 467 F.3d at 226 (“[A] ‘minor beating’ . . .

may rise to the level of persecution if it occurred in the

context of an arrest or detention on the basis of a protected

ground.”). Ramirez-Galvez’s assailants never asserted that

they had any official capacity, nor did they attempt to arrest 4 and detain him. Moreover, Ramirez-Galvez did not seek

medical treatment as a result of the encounters and stated

only that he saw bruises for about two weeks and was in pain

and did not go to work. The death threat made at the end of

the second incident does not tip the scales because threats,

while relevant to the analysis of the possibility of future

harm, generally will not constitute past persecution. See

Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412-13 (2d Cir.

2006). Accordingly, the agency did not err in concluding

that the cumulative harm Ramirez-Galvez experienced did not

rise to the level of persecution. See Poradisova, 420 F.3d at

80; Jian Qiu Liu, 632 F.3d at 822.

Absent past persecution, Ramirez-Galvez had the burden

of establishing an “objectively reasonable” fear of future

persecution. Ramsameachire v. Ashcroft, 357 F.3d 169, 178

(2d Cir. 2004). A fear may be objectively reasonable “even

if there is only a slight, though discernible, chance of

persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000).

But a fear is not objectively reasonable if it lacks “solid

support” in the record and is merely “speculative at best.”

Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).

Ramirez-Galvez did not establish an objectively reasonable

fear. He did not see any of the men who harmed him after the 5 second attack, and there is no evidence that the main

assailant contacted or attempted to contact Ramirez-Galvez or

his family. Ramirez-Galvez testified, moreover, that he is

no longer involved in politics, the party of the man who

harmed him is no longer in power, and he did not provide any

other reason someone would try to harm him now. Given the

absence of specific threats or persuasive reasons that anyone

would seek to harm him, Ramirez-Galvez’s fear of future harm

is “speculative at best.” Jian Xing Huang, 421 F.3d at 129.

The agency also did not err in its alternative finding

that Ramirez-Galvez could safely relocate within Guatemala

and therefore did not have a well-founded fear of persecution.

The agency’s regulations provide that “[a]n applicant does

not have a well-founded fear of persecution if the applicant

could avoid persecution by relocating to another part of the

applicant’s country of nationality . . . , if under all the

circumstances it would be reasonable to expect the applicant

to do so.” 8 C.F.R. § 1208.13(b)(2)(ii). In determining

whether such relocation would be reasonable, the IJ “should

consider . . . whether the applicant would face other serious

harm in the place of suggested relocation; any ongoing civil

strife within the country; administrative, economic, or

judicial infrastructure; geographical limitations; and social 6 and cultural constraints, such as age, gender, health, and

social and familial ties.” 8 C.F.R. § 1208.13(b)(3). The

IJ evaluated the factors required by the regulations and

relied on country reports in the record to find that Ramirez-

Galvez could reasonably relocate within Guatemala. The

agency noted that Ramirez-Galvez is young and in good health

and had full-time employment in Guatemala before he left. He

is no longer involved in Guatemalan politics, and the party

of his assailant does not hold national control.

Because Ramirez-Galvez’s claim for withholding of

removal was based on the same factual predicate as his claim

for asylum, the agency also did not err in denying that form

of relief. See Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir.

2010). For the foregoing reasons, the petition for review

is DENIED. All pending motions and applications are DENIED

and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court