Filed: Jun. 08, 2010
Latest Update: Feb. 22, 2020
Summary: 09-3567-ag Acosta-Serna v. Holder BIA Owens, IJ A078 308 333 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 (WIT
Summary: 09-3567-ag Acosta-Serna v. Holder BIA Owens, IJ A078 308 333 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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09-3567-ag
Acosta-Serna v. Holder
BIA
Owens, IJ
A078 308 333
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 8 th day of June, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 ROBERT A. KATZMANN,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _______________________________________
12
13 FRANCISCO ANTONIO ACOSTA-SERNA,
14 Petitioner,
15
16 v. 09-3567-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Glenn L. Formica, New Haven, CT.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Carl McIntyre, Jr.,
27 Assistant Director; Steven F. Day,
28 Trial Attorney, Office of
29 Immigration Litigation, United
1 States Department of Justice,
2 Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED, that the petition for review
7 is DENIED.
8 Antonio Francisco Acosta-Serna, a native and citizen of
9 Colombia, seeks review of a July 23, 2009 order of the BIA,
10 affirming the November 5, 2007 decision of Immigration Judge
11 (“IJ”) Robert P. Owens, which denied his application for
12 asylum, withholding of removal, and relief under the
13 Convention Against Torture (“CAT”). In re Antonio Francisco
14 Acosta-Serna, No. A078 308 333 (B.I.A. July 23, 2009), aff’g
15 No. A078 308 333 (Immig. Ct. Hartford, CT Nov. 5, 2007). We
16 assume the parties’ familiarity with the underlying facts
17 and procedural history in this case.
18 Under the circumstances of this case, we review the
19 IJ’s decision. See Chun Gao v. Gonzales, 424 F.3d 122, 124
20 (2d Cir. 2005). The applicable standards of review are
21 well-established. See Corovic v. Mukasey,
519 F.3d 90, 95
22 (2d Cir. 2008); Bah v. Mukasey,
529 F.3d 99, 110 (2d Cir.
23 2008).
24 Substantial evidence supports the IJ’s finding that
2
1 Acosta-Serna failed to demonstrate that he suffered past
2 persecution. In order to constitute persecution, the alleged
3 harm must be sufficiently severe, rising above “mere
4 harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
5 332, 341 (2d Cir. 2006). During his merits hearing, Acosta-
6 Serna testified that he was harassed on two occasions by
7 unknown persons. Acosta-Serna asserts that these incidents
8 rose to the level of persecution and that the agency failed
9 to consider his claim in the aggregate. While Acosta-Serna
10 is correct that the agency must consider the applicant’s
11 experiences in the aggregate, the IJ did so in his case.
12 See Poradisova v. Gonzales,
420 F.3d 70, 79-80 (2d Cir.
13 2005); Manzur v. U.S. Dep’t of Homeland Sec.,
494 F.3d 281,
14 289-90 (2d Cir. 2007). Moreover, the IJ did not err in
15 concluding that the two incidents Acosta-Serna described,
16 during which he was threatened but not harmed physically,
17 did not rise to the level of persecution. See Ivanishvili,
18 433 F.3d at 341; Guan Shan Liao v. U.S. Dep’t of Justice,
19
293 F.3d 61, 70 (2d Cir. 2002).
20 Absent past persecution, an applicant may establish
21 eligibility for asylum by showing that he subjectively fears
22 persecution on account of an enumerated ground and that his
3
1 fear is objectively reasonable. See Ramsameachire v.
2 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). Here, the IJ
3 reasonably held that Acosta-Serna failed to demonstrate that
4 he has a well-founded fear of future persecution. As the IJ
5 found, Acosta-Serna’s argument that he would be kidnapped by
6 members of the FARC was too speculative to merit relief,
7 because after he resigned his position as a union
8 representative, he was not threatened again. See Jian Xing
9 Huang v. INS,
421 F.3d 125, 129 (2d Cir. 2005) (explaining
10 that a fear is not objectively reasonable if it lacks “solid
11 support in the record”). The fact that Acosta-Serna’s
12 family remains unharmed in Colombia further undermined her
13 claim, particularly because his wife was also a teacher, and
14 thus, similarly situated to him. See Melgar de Torres v.
15 Reno,
191 F.3d 307, 313 (2d Cir. 1999) (finding that because
16 the asylum applicant’s mother and daughters continued to
17 live in petitioner’s native country, her claim of a well-
18 founded fear was diminished). Thus, the IJ’s denial of
19 Acosta-Serna’s application for asylum was supported by
20 substantial evidence.
21 Because Acosta-Serna based his claims for withholding
22 of removal and CAT relief on the same factual predicate as
4
1 his asylum claim, those claims necessarily fail. See Paul
2 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang
3 v. U.S. Dep’t. of Justice,
426 F.3d 520, 523 (2d Cir. 2005).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
5
