Filed: May 01, 2012
Latest Update: Feb. 12, 2020
Summary: 11-2893-ag Rivera Pino v. Holder BIA Hom, IJ A097 531 133 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 T
Summary: 11-2893-ag Rivera Pino v. Holder BIA Hom, IJ A097 531 133 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 TH..
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11-2893-ag
Rivera Pino v. Holder
BIA
Hom, IJ
A097 531 133
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 1st day of May, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 SECUNDO VICTOR RIVERA PINO,
14 Petitioner,
15
16 v. 11-2893-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Stephen J. Flynn, Assistant
27 Director; James A. Hurley, Attorney,
28 Office of Immigration Litigation,
29 United States Department of Justice,
30 Washington, D.C.
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
4 is DENIED.
5 Secundo Victor Rivera Pino (“Rivera”), a native and
6 citizen of Ecuador, seeks review of a June 24, 2011,
7 decision of the BIA affirming the March 25, 2009, decision
8 of an Immigration Judge (“IJ”), which pretermitted his
9 application for asylum as untimely and denied his
10 applications for withholding of removal and relief under the
11 Convention Against Torture (“CAT”). In re Secundo Victor
12 Rivera Pino, No. A097 531 133 (B.I.A. June 24, 2011), aff’g
13 No. A097 531 133 (Immig. Ct. N.Y. City Mar. 25, 2009). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 Under the circumstances of this case, we consider both
17 the IJ’s and the BIA’s opinions “for the sake of
18 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
19 2008). The applicable standards of review are well
20 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
21 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
22 Rivera challenges the agency’s denial of his
23 application for withholding of removal by arguing that he
2
1 was persecuted in the past, and likely will be persecuted in
2 the future, on account of his membership in a particular
3 social group consisting of “police officers in Ecuador who
4 arrested drug related criminals connected to a corrupt
5 police force,” as well as on account of his political
6 opinion consisting of opposition to state corruption.
7 The government argues that Rivera did not exhaust his
8 administrative remedies because the generic challenge in his
9 brief to the BIA was insufficient to preserve his claim that
10 he merited withholding of removal as a whistle-blower or as
11 someone who reported official corruption. While petitioners
12 generally must raise to the BIA the specific issues they
13 later raise in this Court, see Foster v. INS, 376 F.3d 75,
14 78 (2d Cir. 2004), Theodoropoulos v. INS,
358 F.3d 162, 171
15 (2d Cir. 2004), Rivera sufficiently exhausted this argument
16 because it is a subsidiary argument to his broader political
17 asylum claim involving his fear of future persecution
18 because of his former work as a police officer, see
19 Steevenez v. Gonzales,
476 F.3d 114, 117-18 (2d Cir. 2007),
20 Gill v. INS,
420 F.3d 82, 86 (2d Cir. 2005), and the BIA
21 addressed the merits of this argument, Waldron v. INS, 17
22 F.3d 511, 515 n.7 (2d Cir 1994).
3
1 Nevertheless, the agency reasonably determined that
2 Rivera did not establish his eligibility for withholding of
3 removal. Rivera argues that the cumulative impact of the
4 harm he suffered in Ecuador rises to the level of
5 persecution. However, the agency considered his testimony
6 regarding the anonymous phone calls he received from people
7 he arrested for criminal offenses who threatened him and his
8 family, as well as his testimony concerning the single
9 beating he suffered, and reasonably concluded that the harm
10 was insufficiently severe to rise to the level of past
11 persecution. See Ivanishvili v. U.S. Dep’t of Justice, 433
12 F.3d 332, 341 (2d Cir. 2006); see also Gui Ci Pan v. U.S.
13 Atty. Gen.,
449 F.3d 408, 412 (2d Cir. 2006); Jian Qui Liu
14 v. Holder,
632 F.3d 820, 821-22 (2d Cir. 2011); cf. Beskovic
15 v. Gonzales,
467 F.3d 223, 226 (2d Cir. 2006).
16 Because Rivera did not establish past persecution, the
17 agency correctly concluded that he is not entitled to a
18 presumption of future persecution. See 8 C.F.R.
19 § 1208.13(b)(1). Absent the presumption of future
20 persecution, the agency reasonably concluded that Rivera
21 failed to meet his burden of proof for withholding of
22 removal, regardless of whether he established a nexus to a
23 protected ground, because the evidence he provided to
4
1 establish a likelihood of future harm consisted of his own
2 uncorroborated and undetailed testimony that his daughter
3 had told him that people in the street in Ecuador had asked
4 her about him. This statement is speculative and inadequate
5 to meet his burden of proof. Jian Xing Huang v. U.S. INS,
6 421 F.3d 125, 129 (2d Cir. 2005) (absent “solid support” in
7 the record that his fear is objectively reasonable, a
8 petitioner’s claim is “speculative at best”). As Rivera did
9 not produce sufficient evidence to establish either past
10 persecution or a clear probability of future persecution in
11 Ecuador, the agency did not err in denying his application
12 for withholding of removal. See 8 C.F.R. § 1208.16(b)(1);
13 Ramsameachire v. Ashcroft,
357 F.3d 169, 178 (2d Cir. 2004).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any pending
16 request for oral argument in this petition is DENIED in
17 accordance with Federal Rule of Appellate Procedure 34(a)(2)
18 and Second Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
5
