    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
