         10-30-ag
         Garcia-Ramirez v. Holder
                                                                                        BIA
                                                                                   Videla, IJ
                                                                            A088 016 618/619
                                    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 5th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                ROBERT D. SACK,
 9                DEBRA ANN LIVINGSTON,
10                       Circuit Judges.
11       _______________________________________
12
13       ELIZABETH ZUMARI GARCIA-RAMIREZ,
14       KATHERINE XIOMARA GRANADOS GARCIA
15                Petitioners,
16
17                           v.                                 10-30-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONERS:                    Bruno Joseph Bembi, Hempstead, New
25                                           York.
26
27       FOR RESPONDENT:                     Tony West, Assistant Attorney
28                                           General; Daniel E. Goldman, Senior
29                                           Litigation Counsel; Paul T.
 1                           Cygnarowicz, Trial Attorney, Office
 2                           of Immigration Litigation, United
 3                           States Department of Justice,
 4                           Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Elizabeth Zumari Garcia-Ramirez (“Garcia”) and her

11   daughter Katherine Xiomara Granados Garcia, natives and

12   citizens of El Salvador, seek review of a December 8, 2009,

13   order of the BIA affirming the August 18, 2008, decision of

14   Immigration Judge (“IJ”) Gabriel C. Videla, which denied

15   their application for asylum, withholding of removal, and

16   relief under the Convention Against Torture (“CAT”).     In re

17   Garcia-Ramirez, Nos. A088 016 618/619 (B.I.A. Dec. 8, 2009),

18   aff’g Nos. A088 016 618/619 (Immig. Ct. N.Y. City Aug. 18,

19   2008).   We assume the parties’ familiarity with the

20   underlying facts and procedural history in this case.

21       Under the circumstances of this case, we review the

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

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

24   applicable standards of review are well-established.     See

25   Salimatou Bah v. Mukasey, 529 F.3d 99, 110-11 (2d Cir.


                                   2
 1   2008); Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).

 2   The only issue before us is whether the agency erred in

 3   denying Garcia’s application for asylum and withholding, as

 4   Garcia has not challenged her denial of CAT relief in this

 5   Court.

 6       Garcia challenges the agency’s determination that she

 7   failed to show that the harm she suffered constituted

 8   persecution.   The BIA has defined persecution as a “threat

 9   to the life or freedom of, or the infliction of suffering or

10   harm upon, those who differ in a way regarded as offensive.”

11   Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985),

12   overruled in part on other grounds, INS v. Cardoza-Fonseca,

13   480 U.S. 421 (1987); accord Ivanishvili v. U.S. Dep’t of

14   Justice, 433 F.3d 332, 342 (2d Cir. 2006).     The harm or

15   suffering must be inflicted in order to punish the

16   individual for possessing a belief or characteristic the

17   persecutor seeks to overcome, and inflicted either by the

18   government of a country or by persons or an organization

19   that the government is unable or unwilling to control.

20   Acosta, 19 I. & N. Dec. at 222; see also Pavlova v. INS, 441

21   F.3d 82, 91 (2d Cir. 2006).     In addition, the harm must be

22   sufficiently severe, rising above “mere harassment.”

23   Ivanishvili, 433 F.3d at 341.

                                     3
 1       Here, the agency reasonably found that the threats

 2   against Garcia were insufficiently severe to constitute

 3   persecution.   See id.   As the agency noted, Garcia claimed

 4   only that her sister’s mother-in-law held her responsible

 5   for Frederico Zelada’s death, and that she received three

 6   vague telephone calls.   Garcia had one conversation at

 7   Zelada’s funeral with her sister’s mother-in-law, in which

 8   the mother-in-law said that Garcia must be happy about what

 9   happened to Zelada, and thereafter, Garcia heard from her

10   sister that the mother-in-law was looking for her address.

11   Garcia also received three telephone calls at her home in

12   which someone asked for her by name, and asked whether she

13   lived there.   These incidents were the sum total of the

14   threats against Garcia, and the agency did not err in

15   finding that these threats did not amount to persecution.

16   See id.

17       Even if Garcia had suffered persecution, as the agency

18   found, there is no evidence that it was on account of a

19   statutorily protected ground.       See 8 U.S.C. § 1101(a)(42).

20   In addition to showing past persecution or a well-founded

21   fear of persecution, asylum eligibility requires that the

22   persecution be on account of the applicant’s race, religion,

23   nationality, political opinion, or particular social group.

                                     4
 1   Id.   In order to establish eligibility for asylum based on

 2   membership in a particular social group, the applicant must

 3   establish both that the group itself was cognizable (i.e.,

 4   defined with sufficient particularity and socially visible),

 5   see Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007),

 6   and that the alleged persecutors targeted the applicant “on

 7   account of” her membership in that group, see 8 U.S.C.

 8   § 1101(a)(42).    In this case, Garcia argues that she is a

 9   member of a group consisting of “relative[s] of a battered

10   woman accused of the death of the abuser by his relatives.”

11   A “particular social group is comprised of individuals who

12   possess some fundamental characteristic in common which

13   serves to distinguish them in the eyes of a persecutor-or in

14   the eyes of the outside world in general.” Ucelo-Gomez, 509

15   F.3d at 73 (internal quotation marks omitted).    Garcia did

16   not testify that there were other members of her group, nor

17   did she testify as to why her sister’s mother-in-law accused

18   her of Zelada’s death, although she did testify that his

19   death was likely on account of his debts, and unrelated to

20   his abuse of her sister.    Garcia did not testify as to why

21   she believed that the accusation by her sister’s mother-in-

22   law was a result of her relationship to her sister, a

23   battered woman.    Consequently, she did not meet her burden

24   of showing that her status as the relative of a battered

                                    5
 1   woman distinguished her in the eyes of her sister’s mother-

 2   in-law.     Moreover, “although the existence of persecution is

 3   a relevant factor, a social group cannot be defined

 4   exclusively by the fact that its members have been subjected

 5   to harm.”     Ucelo-Gomez, 509 F.3d at 73 (internal quotation

 6   marks and emphasis omitted).     In this case, the group Garcia

 7   describes is defined exclusively by the harm she suffered -

 8   the accusation made by her sister’s mother-in-law.

 9       Garcia also argues briefly that she was persecuted on

10   account of her imputed political opinion, because “[i]n the

11   eyes of Ms. Zelada, her belief and opposition to her

12   sister’s relationship with her son, was the cause of his

13   death and the main reason for the threats and intimidation

14   that she was carrying out against her.”     However, as

15   discussed above, Garcia did not meet her burden of

16   demonstrating that her sister’s mother-in-law believed

17   Zelada’s death was a result of his abuse of Garcia’s sister,

18   or a result of Garcia’s opposition to that abuse.     As a

19   result, substantial evidence supports the agency’s finding

20   that Garcia’s dispute was personal, and not on account of

21   any statutorily protected ground.     See 8 U.S.C.

22   § 1101(a)(42).

23       Because the agency reasonably concluded that Garcia did

                                     6
 1   not suffer past persecution on account of a protected

 2   ground, she is not entitled to a presumption of future

 3   persecution.     See 8 C.F.R. § 208.13(b)(1).   Furthermore,

 4   Garcia makes no argument concerning a fear of future

 5   persecution independent from the incidents that occurred in

 6   the past.     Moreover, after the telephone calls to her home

 7   began, Garcia moved to a city approximately two and one-half

 8   hours away, where she lived for about seven months without

 9   receiving any further threats or telephone calls.      As a

10   result, even if Garcia had a well-founded fear of future

11   persecution if she were to return to El Salvador, the record

12   shows that she could avoid persecution by relocating to

13   another part of the country.     See 8 C.F.R.

14   § 208.13(b)(2)(ii).

15       For the foregoing reasons, the petition for review is

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

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

18
19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22
23




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