Filed: Jul. 17, 2020
Latest Update: Jul. 17, 2020
Summary: 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
Summary: 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 ..
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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).
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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
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