         11-2893-ag
         Rivera Pino v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A097 531 133
                                 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 1st day of May, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       SECUNDO VICTOR RIVERA PINO,
14                Petitioner,
15
16                           v.                                 11-2893-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                  Joshua Bardavid, New York, New York.
24
25       FOR RESPONDENT:                  Tony West, Assistant Attorney
26                                        General; Stephen J. Flynn, Assistant
27                                        Director; James A. Hurley, Attorney,
28                                        Office of Immigration Litigation,
29                                        United States Department of Justice,
30                                        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       Secundo Victor Rivera Pino (“Rivera”), a native and

 6   citizen of Ecuador, seeks review of a June 24, 2011,

 7   decision of the BIA affirming the March 25, 2009, decision

 8   of an Immigration Judge (“IJ”), which pretermitted his

 9   application for asylum as untimely and denied his

10   applications for withholding of removal and relief under the

11   Convention Against Torture (“CAT”).     In re Secundo Victor

12   Rivera Pino, No. A097 531 133 (B.I.A. June 24, 2011), aff’g

13   No. A097 531 133 (Immig. Ct. N.Y. City Mar. 25, 2009).     We

14   assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16       Under the circumstances of this case, we consider both

17   the IJ’s and the BIA’s opinions “for the sake of

18   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

19   2008). The applicable standards of review are well

20   established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

21   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

22       Rivera challenges the agency’s denial of his

23   application for withholding of removal by arguing that he


                                     2
 1   was persecuted in the past, and likely will be persecuted in

 2   the future, on account of his membership in a particular

 3   social group consisting of “police officers in Ecuador who

 4   arrested drug related criminals connected to a corrupt

 5   police force,” as well as on account of his political

 6   opinion consisting of opposition to state corruption.

 7       The government argues that Rivera did not exhaust his

 8   administrative remedies because the generic challenge in his

 9   brief to the BIA was insufficient to preserve his claim that

10   he merited withholding of removal as a whistle-blower or as

11   someone who reported official corruption.   While petitioners

12   generally must raise to the BIA the specific issues they

13   later raise in this Court, see Foster v. INS, 376 F.3d 75,

14   78 (2d Cir. 2004), Theodoropoulos v. INS, 358 F.3d 162, 171

15   (2d Cir. 2004), Rivera sufficiently exhausted this argument

16   because it is a subsidiary argument to his broader political

17   asylum claim involving his fear of future persecution

18   because of his former work as a police officer, see

19   Steevenez v. Gonzales, 476 F.3d 114, 117-18 (2d Cir. 2007),

20   Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005), and the BIA

21   addressed the merits of this argument, Waldron v. INS, 17

22   F.3d 511, 515 n.7 (2d Cir 1994).


                                  3
 1       Nevertheless, the agency reasonably determined that

 2   Rivera did not establish his eligibility for withholding of

 3   removal.   Rivera argues that the cumulative impact of the

 4   harm he suffered in Ecuador rises to the level of

 5   persecution.   However, the agency considered his testimony

 6   regarding the anonymous phone calls he received from people

 7   he arrested for criminal offenses who threatened him and his

 8   family, as well as his testimony concerning the single

 9   beating he suffered, and reasonably concluded that the harm

10   was insufficiently severe to rise to the level of past

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

12   F.3d 332, 341 (2d Cir. 2006); see also Gui Ci Pan v. U.S.

13   Atty. Gen., 449 F.3d 408, 412 (2d Cir. 2006); Jian Qui Liu

14   v. Holder, 632 F.3d 820, 821-22 (2d Cir. 2011); cf. Beskovic

15   v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006).

16       Because Rivera did not establish past persecution, the

17   agency correctly concluded that he is not entitled to a

18   presumption of future persecution.   See 8 C.F.R.

19   § 1208.13(b)(1).   Absent the presumption of future

20   persecution, the agency reasonably concluded that Rivera

21   failed to meet his burden of proof for withholding of

22   removal, regardless of whether he established a nexus to a

23   protected ground, because the evidence he provided to


                                   4
 1   establish a likelihood of future harm consisted of his own

 2   uncorroborated and undetailed testimony that his daughter

 3   had told him that people in the street in Ecuador had asked

 4   her about him.   This statement is speculative and inadequate

 5   to meet his burden of proof.    Jian Xing Huang v. U.S. INS,

 6   421 F.3d 125, 129 (2d Cir. 2005) (absent “solid support” in

 7   the record that his fear is objectively reasonable, a

 8   petitioner’s claim is “speculative at best”).    As Rivera did

 9   not produce sufficient evidence to establish either past

10   persecution or a clear probability of future persecution in

11   Ecuador, the agency did not err in denying his application

12   for withholding of removal.    See 8 C.F.R. § 1208.16(b)(1);

13   Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

14       For the foregoing reasons, the petition for review is

15   DENIED.   As we have completed our review, any pending

16   request for oral argument in this petition is DENIED in

17   accordance with Federal Rule of Appellate Procedure 34(a)(2)

18   and Second Circuit Local Rule 34.1(b).

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




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