Filed: Jun. 18, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3082-ag Garcia de Diaz v. Holder BIA Morace, IJ A073 541 655 A073 541 656 A073 541 657 A073 582 042 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 FEDER
Summary: 09-3082-ag Garcia de Diaz v. Holder BIA Morace, IJ A073 541 655 A073 541 656 A073 541 657 A073 582 042 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 FEDERA..
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09-3082-ag
Garcia de Diaz v. Holder
BIA
Morace, IJ
A073 541 655
A073 541 656
A073 541 657
A073 582 042
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 18 th day of June, two thousand ten.
PRESENT:
RALPH K. WINTER,
JOSÉ A. CABRANES,
REENA RAGGI,
Circuit Judges.
______________________________________
MARIA VICTORIA GARCIA DE DIAZ, ALBERTO
CARMELO DIAZ RIVERA, DILIAN OMAR DIAZ
GARCIA, JIMY ALBERTO DIAZ GARCIA
Petitioners,
v. 09-3082-ag
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
UNITED STATES DEPARTMENT OF JUSTICE,
Respondents.
______________________________________
FOR PETITIONERS: Bruno Joseph Bembi, Hempstead, New
York.
FOR RESPONDENTS: Tony West, Assistant Attorney
General; Greg D. Mack, Senior
Litigation Counsel; Shahrzad Baghai,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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.
Petitioners, natives and citizens of Guatemala, seek
review of a June 29, 2009 order of the BIA affirming the
November 6, 2007 decision of Immigration Judge (“IJ”) Philip
L. Morace, denying their application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Diaz, Nos. A073 541 655/656/657, A073 582
042 (BIA June 29, 2009), aff’g Nos. A073 541 655/656/657,
A073 582 042 (Immig. Ct. N.Y. City, Nov. 6, 2007). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The agency’s
factual findings “are conclusive unless any reasonable
2
adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B). We review de novo questions of
law and the BIA’s application of law to undisputed fact.
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
I. Asylum, Withholding of Removal, and CAT
Substantial evidence supports the agency’s
determination that Maria Garcia de Diaz, the lead applicant,
did not suffer past persecution by virtue of her brother’s
death. See Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d
Cir. 2007) (“[A]n asylum applicant cannot claim past
persecution based solely on harm that was inflicted on a
family member on account of that family member’s political
opinion or other protected characteristic.”). Moreover, the
threats she received, without more, did not rise to the
level of persecution. See Gui Ci Pan v. U.S. Attorney Gen.,
449 F.3d 408, 412 (2d Cir. 2006) (noting that courts have
“rejected [persecution] claims involving ‘unfulfilled’
threats”). Further, the circumstances surrounding her
brother’s death were vague, and nothing in the record
indicated that Maria Garcia de Diaz would be targeted if she
returned to Guatemala. See Jian Xing Huang v. INS,
421 F.3d
125, 129 (2d Cir. 2005) (holding that fear alleged in
“sparse” testimony lacking “solid support” is “speculative
3
at best”); Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d
Cir. 1999) (observing that evidence that family members
continued to live in native country “cuts against
[applicant’s] argument that she has a well-founded fear of
persecution”).
Accordingly, we conclude that the agency reasonably
determined that petitioners failed to establish a well-
founded fear of future persecution in Guatemala. Because
petitioners were unable to carry their burden of proof for
asylum, their withholding of removal claim necessarily
fails. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006). Petitioners have waived any challenge to the
agency’s denial of their CAT claim by not sufficiently
arguing the issue before this court. See Yueqing Zhang v.
Gonzales,
426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
II. Motion to Remand
We review the BIA’s denial of a motion to remand for
abuse of discretion, see Li Yong Cao v. U.S. Dep't of
Justice, 421 F.3d 149, 151 (2d Cir. 2005), and we identify
none here.
Before the BIA, the lead petitioner and her husband
sought cancellation of removal under section 240A(b) of the
Immigration and Nationality Act, codified at 8 U.S.C.
4
§ 1229b(b), based on the change in immigration status of
their children, Javier E. Diaz and Jimy Alberto Diaz Garcia.
The BIA did not abuse its discretion in denying the remand
motion given that both children were more than twenty-one
years old and married at the time. See 8 U.S.C.
§ 1101(b)(1) (defining “child” as “an unmarried person under
twenty-one years of age”); id. § 1229b(b)(1)(D) (including
“child” as qualifying relative for cancellation). Nor did
Jimy Diaz Garcia’s adjustment application warrant remand
when petitioners failed to establish his prima facie
eligibility for relief. See 8 C.F.R. § 1003.2(c); Matter of
Coelho, 20 I. & N. Dec. 464 (BIA 1992).
To the extent petitioners argue that they are eligible
for “special rule” cancellation of removal under the
Nicaraguan Adjustment and Central American Relief Act, Pub.
L. No. 105-100, 111 Stat. 2193 (1997) (codified at 8 U.S.C.
§ 1101 note), we are without jurisdiction to consider that
argument because they failed to exhaust it before the BIA,
see 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113,
119 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the court previously granted in this petition
5
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
