Filed: Feb. 22, 2012
Latest Update: Feb. 22, 2020
Summary: 10-3637-ag Retana-Constanza v. Holder BIA Verrillo, IJ A072 797 391 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 DATABA
Summary: 10-3637-ag Retana-Constanza v. Holder BIA Verrillo, IJ A072 797 391 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 DATABAS..
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10-3637-ag
Retana-Constanza v. Holder
BIA
Verrillo, IJ
A072 797 391
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 22nd day of February, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _________________________________________
12
13 YONI ESTUARDO RETANA-CONSTANZA,
14 Petitioner,
15
16 v. 10-3637-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Jon E. Jessen, Stamford,
24 Connecticut.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Blair O’Connor, Assistant
28 Director; Kathryn Moore, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, 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 Yoni Estuardo Retana-Constanza, a native and citizen of
6 Guatemala, seeks review of an August 10, 2010 order of the
7 BIA affirming the December 9, 2008 decision of Immigration
8 Judge (“IJ”) Philip Verrillo denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Yoni Estuardo
11 Retana-Constanza, No. A072 797 391 (B.I.A. Aug. 10, 2010),
12 aff’g No. A072 797 391 (Immig. Ct. Hartford, CT Dec. 9,
13 2008). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
20 The agency reasonably found that the harm Retana-
21 Constanza suffered — being regularly chased and harassed by
22 both military recruiters and guerillas in Guatemala, and
23 scratches received while evading pursuers — was, when
2
1 considered in the aggregate, insufficiently severe to
2 constitute persecution. See Ivanishvili v. U.S. Dep’t of
3 Justice, 433 F.3d 332, 341-42 (2d Cir. 2006).
4 Because the agency reasonably concluded that Retana-
5 Constanza did not suffer past persecution, he is not
6 entitled to a presumption of future persecution.
7 See 8 C.F.R. § 1208.13(b)(1). To the extent he argues that
8 he has a well-founded fear of future persecution independent
9 from his claims of past persecution, the agency did not err
10 in finding that he did not demonstrate a nexus between his
11 fear of persecution and a protected ground. As the
12 government notes, Retana-Constanza asserts for the first
13 time to this Court that he fears persecution on account of
14 the political opinion of his father, as imputed to him, and,
15 accordingly, we decline to consider that claim. See Lin
16 Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 119-20, 124
17 (2d Cir. 2007); Foster v. INS,
376 F.3d 75, 78 (2d Cir.
18 2004). Retana-Constanza also argues that he fears
19 persecution on account of his membership in a particular
20 social group of minor-aged males who resisted recruitment by
21 both guerillas and the Guatemalan military. A “particular
22 social group is comprised of individuals who possess some
3
1 fundamental characteristic in common which serves to
2 distinguish them in the eyes of a persecutor—or in the eyes
3 of the outside world in general.” Ucelo-Gomez v. Mukasey,
4 509 F.3d 70, 73 (2d Cir. 2007) (quoting Gomez v. INS, 947
5 F.2d 660, 664 (2d Cir. 1991)). To the extent that minor-
6 aged males share a fundamental characteristic in common,
7 Retana-Constanza is no longer part of such a group, as he is
8 now thirty-seven years old.
9 Finally, Retana-Costanza argues that he fears
10 persecution on account of his political opinion, and defines
11 his political opinion as remaining neutral when pursued and
12 recruited by both guerillas and the Guatemalan military.
13 Resistance to recruitment by a guerilla movement alone is
14 not sufficient to show that any resulting persecution is on
15 account of political opinion because there are many reasons
16 why an individual might choose not to join a guerilla
17 movement, despite pressure to do so. INS v. Elias-Zacarias,
18
502 U.S. 478, 482-83 (1992). Unless a petitioner
19 demonstrates that a reason for not joining a movement was
20 his own political opinion, and that the movement or group
21 would seek to harm him on account of that political opinion,
22 he has not met his burden of showing the necessary nexus to
4
1 a protected ground. Id. Because Retana-Constanza did not
2 testify that he feared harm on account of his political
3 opinion, or present any evidence to that effect, the agency
4 did not err in finding that he did not demonstrate that his
5 claimed fear of persecution for resistance to joining either
6 the guerillas or the military was on account of his
7 political opinion. See
id.
8 Accordingly, because Retana-Constanza failed to
9 demonstrate that he suffered past persecution, or feared
10 future persecution on account of a protected ground, the
11 agency did not err in denying his application for asylum and
12 withholding of removal. See 8 U.S.C. §§ 1101(a)(42),
13 1231(b)(3)(A). Although Retana-Constanza argues that he has
14 demonstrated that it is more likely than not he will be
15 tortured if he returns to Guatemala, he has not presented
16 any evidence to support this claim, other than generalized
17 reports that Guatemalan police have engaged in torture,
18 abuse and mistreatment, which are insufficient to overturn
19 the agency’s denial of CAT relief. See 8 C.F.R.
20 §§ 1208.16(c)(2), 1208.18(a); Mu Xiang Lin v. U.S. Dep’t of
21 Justice,
432 F.3d 156, 160 (2d Cir. 2005).
22
23
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
6
