         08-4010-ag
         Arbieto-Cortez v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A098 642 731
                                                                               A098 642 732
                                                                               A098 642 733
                                                                               A098 642 734
                                                                               A070 868 824
                                    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 February, two thousand ten.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROBERT A. KATZMANN,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       ______________________________________
12       WILFREDO ARBIETO CORTEZ, LINA CONSUELO
13       LOPEZ DE ARBIETO, LIZBETH ARBIETO LOPEZ,
14       WILFREDO ARBIETO LOPEZ, LINA KATHERINE
15       ARBIETO LOPEZ,
16                Petitioners,
17                 v.                                           08-4010-ag
18       ERIC H. HOLDER, JR., 1                                 NAC
19       UNITED STATES ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23
24
25


                  1
              Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr., is
         automatically substituted for former Attorney General
         Michael B. Mukasey as the respondent in this case.
 1   FOR PETITIONERS:       Glenn L. Formica, New Haven,
 2                          Connecticut.
 3
 4   FOR RESPONDENT:        Michael F. Hertz, Acting Assistant
 5                          Attorney General; John S. Hogan,
 6                          Senior Litigation Counsel; Robbin K.
 7                          Blaya, Trial Attorney, Office of
 8                          Immigration Litigation, United
 9                          States Department of Justice,
10                          Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

13   Board of Immigration Appeals (“BIA”) decision, it is hereby

14   ORDERED, ADJUDGED, AND DECREED, that the petition for review

15   is DENIED in part and DISMISSED in part.

16       Petitioners, all natives and citizens of Peru, seek

17   review of a July 16, 2008 order of the BIA affirming the

18   November 28, 2006 decision of Immigration Judge (“IJ”)

19   Michael W. Straus which denied their application for asylum,

20   withholding of removal, and relief under the Convention

21   Against Torture (“CAT”).   In re Nos. A098 642

22   731/732/733/734, A070 868 824 (BIA Jul. 16, 2008), aff’g

23   Nos. A098 642 731/732/733/734, A070 868 824 (Immig. Ct.

24   Hartford, CT Nov. 28, 2006).   We assume the parties’

25   familiarity with the underlying facts and procedural history

26   in this case.

27       Under the circumstances of this case, we review the

28   decision of the IJ as supplemented by the BIA.   See Yan Chen

                                    2
1    v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).       The

2    applicable standards of review are well-established.       See

3    8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

4    510, 513 (2d Cir. 2009).

5        Substantial evidence supports the agency’s denial of

6    petitioners’ application for relief.       The agency reasonably

7    determined that petitioners did not suffer past persecution

8    because the anonymous threats they received, without more,

9    constituted harassment that does not rise to the level of

10   persecution.   See Ivanishvili v. U.S. Dep’t of Justice, 433

11   F.3d 332, 341 (2d Cir. 2006).       The agency also reasonably

12   determined that petitioners did not have a well-founded fear

13   of future persecution because Wilfredo, the lead applicant

14   before the agency, has been retired from his post as

15   prosecutor for several years and nothing in the record

16   indicated that he would still be a target if he returned to

17   Peru.   See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d

18   Cir. 2005) (holding that a fear is not objectively

19   reasonable if it lacks “solid support” in the record and is

20   merely “speculative at best.”).       Although Wilfredo testified

21   that former prosecutors in Peru had been killed years after

22   their retirement, he provided no evidence that this had been


                                     3
1    the case.   See Tun v. INS, 445 F.3d 554, 568 (2d Cir. 2006).

2        Moreover, substantial evidence supports the agency’s

3    determination that, even if petitioners demonstrated past

4    persecution or a well-founded fear of future persecution,

5    they failed to demonstrate that the government was or would

6    be unable or unwilling to control the alleged persecutors.

7    See Ivanishvili, 433 F.3d at 342.   Contrary to petitioners’

8    assertions that the government could not provide assistance,

9    Peruvian officials investigated the written threat left at

10   Wilfredo’s home, assigned guards to him for approximately

11   three months, and arranged a transfer for him to a different

12   town.   With respect to the subsequent phone threats

13   petitioners received, they failed to report them to police.

14   Thus, the agency reasonably determined that petitioners

15   failed to demonstrate the government’s inability or

16   unwillingness to control the alleged persecutors.      See id.

17       Because petitioners were unable to meet their burden of

18   proof for asylum, their withholding of removal claim

19   necessarily fails.   See Paul v. Gonzales, 444 F.3d 148, 156

20   (2d Cir. 2006).

21       To the extent petitioners challenge the IJ’s denial of

22   their request for CAT relief, we are without jurisdiction to

23   consider that argument as they failed to exhaust that claim

                                   4
1    before the BIA.   See 8 U.S.C. § 1252(d)(1); Karaj v.

2    Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).   We dismiss the

3    petition for review to that extent.

4        For the foregoing reasons, the petition for review is

5    DENIED in part and DISMISSED in part.   As we have completed

6    our review, any stay of removal that the Court previously

7    granted in this petition is VACATED, and any pending motion

8    for a stay of removal in this petition is DISMISSED as moot.

9    Any pending request for oral argument in this petition is

10   DENIED in accordance with Federal Rule of Appellate

11   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk
14
15
16




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