     16-3852
     Molina-Hernandez v. Sessions
                                                                                    BIA
                                                                               Straus, IJ
                                                                           A208 197 012
                                                                           A208 197 014


                            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 TO 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 Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 23rd day of May, two thousand eighteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            GUIDO CALABRESI,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   LEIDY XIOMARA MOLINA-HERNANDEZ,
14   JORGE VALDEMAR ANDRADE-MOLINA,
15
16                              Petitioners,
17
18                     v.                                        16-3852
19                                                               NAC
20
21   JEFFERSON B. SESSIONS III,
22   UNITED STATES ATTORNEY GENERAL,
23
24                 Respondent.
25   _____________________________________
26
27   FOR PETITIONERS:                          Robert C. Ross, West Haven, CT.
 1
 2   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
 3                                      Attorney General, Civil Division;
 4                                      Cindy   S.   Ferrier,   Assistant
 5                                      Director; Matt A. Crapo, Trial
 6                                      Attorney, Office of Immigration
 7                                      Litigation,     United     States
 8                                      Department       of      Justice,
 9                                      Washington, DC.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DENIED.

15       Petitioners       Leidy   Xiomara      Molina-Hernandez         and   Jorge

16   Valdemar Andrade-Molina, natives and citizens of Guatemala,

17   seek review of an October 19, 2016, decision of the BIA

18   affirming an April 25, 2016, decision of an Immigration Judge

19   (“IJ”) denying Molina-Hernandez’s application for asylum,

20   withholding   of    removal,    and       relief    under    the    Convention

21   Against   Torture     (“CAT”). 1      In    re     Leidy    Xiomara   Molina-

22   Hernandez,    Jorge    Valdemar    Andrade-Molina,           Nos.    A208   197

23   012/014 (B.I.A. Oct. 19, 2016), aff’g Nos. A208 197 012/014

24   (Immig. Ct. Hartford Apr. 25, 2016).               We assume the parties’

25   familiarity with the underlying facts and procedural history


     1Andrade-Molina, Molina-Hernandez’s minor son, was included
     on   Molina-Hernandez’s   application   as   a   derivative
     beneficiary.

                                           2
1    in this case.

2          Under the circumstances of this case, we review the IJ’s

3    decision     as   modified    by    the   BIA   (i.e.,   excluding    the

4    particular social group findings, which the BIA declined to

5    reach). See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

6    520, 522 (2d Cir. 2005).        The applicable standards of review

7    are well established.         See 8 U.S.C. § 1252(b)(4)(B); Yanqin

8    Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).               For the

9    reasons that follow, we conclude that the agency did not err

10   in determining that Molina-Hernandez failed to show past

11   persecution or a well-founded fear of future persecution.

12         Past persecution can be based on harm other than threats

13   to    life   or    freedom,     “includ[ing]      non-life-threatening

14   violence and physical abuse,” Beskovic v. Gonzales, 467 F.3d

15   223, 226 n.3 (2d Cir. 2006), but the harm must be sufficiently

16   severe to rise above “mere harassment,” Ivanishvili v. U.S.

17   Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006); see Mei

18   Fun   Wong   v.   Holder,     633    F.3d   64,   72   (2d   Cir.   2011)

19   (“[P]ersecution is an extreme concept that does not include

20   every sort of treatment our society regards as offensive.”

21   (citation and internal quotation marks omitted)). The agency

22   did not err by determining that Molina-Hernandez’s past harm


                                          3
1    did not rise to the level of persecution.                  See Hui Lin Huang

2    v. Holder, 677 F.3d 130, 136 (2d Cir. 2012) (reviewing de

3    novo    whether    harm     rises      to        level   that    constitutes

4    persecution).      Molina-Hernandez testified that she received

5    three    threatening      calls   on       her    mobile    phone    from     an

6    unidentified individual demanding money and threatening her

7    son’s life if she did not pay.              The agency considered this

8    testimony    and   correctly      determined         that    these   threats,

9    without more were not sufficient.                See Ci Pan v. U.S. Att’y

10   Gen., 449 F.3d 408, 412-13 (2d Cir. 2006) (“This Court, and

11   others, previously have rejected similar claims involving

12   ‘unfulfilled’ threats.” (collecting cases)).

13          Absent past persecution, Molina-Hernandez had the burden

14   of showing a well-founded fear of future persecution, which

15   is a “subjective fear that is objectively reasonable.”                      Dong

16   Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir. 2009)

17   (citations and internal quotation marks omitted). The agency

18   did not err in concluding that Molina-Hernandez failed to

19   meet her burden because she had no evidence of continuing

20   threats or any continued interest in her. See Jian Xing Huang

21   v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence

22   of solid support in the record,” a fear of persecution is not


                                            4
1    well founded and “is speculative at best.”); see also See Hui

2    Lin Huang, 677 F.3d at 135 (holding that “de novo review

3    applies to the ultimate question of whether the applicant has

4    sustained her burden to establish that her subjective fear of

5    persecution is objectively reasonable”).            Absent a well-

6    founded fear of persecution, Molina-Hernandez necessarily

7    failed to meet the higher burdens for withholding of removal

8    and CAT relief.     Y.C. v. Holder, 741 F.3d 324, 335 (2d Cir.

9    2013).    Because   the   agency’s   conclusions     regarding    past

10   persecution   and   a   well-founded    fear   of   persecution   are

11   dispositive, we decline to reach the agency’s alternative

12   ruling regarding the ability of the Guatemalan government to

13   come to Molina-Hernandez’s aid.        INS v. Bagamasbad, 429 U.S.

14   24, 25 (1976) (“As a general rule courts and agencies are not

15   required to make findings on issues the decision of which is

16   unnecessary to the results they reach.”).

17       For the foregoing reasons, the petition for review is

18   DENIED.   As we have completed our review, any pending motion

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

20                             FOR THE COURT:
21                             Catherine O’Hagan Wolfe,
22                             Clerk of Court




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