         11-87-ag
         Aquino v. Holder
                                                                                         BIA
                                                                                  Vomacka, IJ
                                                                                 A098 647 469
                                                                                 A098 647 450
                                 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 New
 4       York, on the 25th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT D. SACK,
10                REENA RAGGI,
11                     Circuit Judges.
12       _____________________________________
13
14       FATIMA EVANGELISTA CEN AQUINO,
15       J. RAPHAEL RAY CEN AQUINO,
16                Petitioners,
17
18                          v.                                    11-87-ag
19                                                                NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONERS:                Felix Q. Vinluan, Law Office of Felix
26                                       Q. Vinluan, New York, New York.
27
28       FOR RESPONDENT:                 Tony West, Assistant Attorney General;
29                                       John S. Hogan, Senior Litigation
 1                             Counsel; Edward E. Wiggers, Trial
 2                             Attorney, Office of Immigration
 3                             Litigation, United States Department of
 4                             Justice, 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 DISMISSED in part and DENIED in part.

10       Petitioners Fatima Evangelista Cen Aquino (“Aquino”) and

11   J. Raphael Ray Cen Aquino, natives and citizens of the

12   Philippines, seek review of a December 3, 2010, decision of

13   the BIA affirming the May 26, 2009, decision of Immigration

14   Judge (“IJ”) Alan A. Vomacka denying Aquino’s application for

15   asylum and withholding of removal.     In re Fatima Evangelista

16   Cen Aquino, J. Raphael Ray Cen Aquino, Nos. A098 647 469/450

17   (B.I.A. Dec. 3, 2010), aff’g Nos. A098 647 469/450 (Immig. Ct.

18   N.Y. City May 26, 2009).     We assume the parties’ familiarity

19   with the underlying facts and procedural history of the case.

20       Under the circumstances of this case, we have considered

21   both the IJ’s and the BIA’s opinions for the sake of

22   completeness.     Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d

23   Cir. 2006).     The applicable standards of review are well-

24   established.     See 8 U.S.C. § 1252(b)(4)(B); Aliyev v. Mukasey,

25   549 F.3d 111, 115 (2d Cir. 2008).

                                      2
 1   I.   Asylum

 2        The agency denied Aquino’s asylum application as untimely

 3   filed, and concluded that Aquino did not qualify for any

 4   exceptions to the statutory filing deadline.     This Court lacks

 5   jurisdiction to review these determinations.     See 8 U.S.C.

 6   § 1158(a)(3) (placing agency determinations as to the

 7   timeliness of an asylum application beyond judicial review);

 8   see also Gui Yin Liu v. INS, 508 F.3d 716, 720 (2d Cir. 2007).

 9    While we retain jurisdiction to review “constitutional claims

10   or questions of law,” 8 U.S.C. § 1252(a)(2)(D), Aquino has

11   raised no such arguments in her brief.     Accordingly, we

12   dismiss for lack of subject matter jurisdiction the portion of

13   Aquino’s petition seeking to review the agency’s denial of her

14   asylum claim.

15   II. Withholding of Removal

16        Persecution is a “threat to the life or freedom of, or

17   the infliction of suffering or harm upon, those who differ in

18   a way regarded as offensive.”     Matter of Acosta, 19 I. & N.

19   Dec. 211, 222 (BIA 1985), overruled, in part, on other

20   grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); accord

21   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d

22   Cir. 2006).     The harm or suffering must be inflicted in order


                                      3
 1   to punish the individual for having a belief or characteristic

 2   the persecutor seeks to overcome, and inflicted either by the

 3   government of a country or by persons or an organization that

 4   the government is unable or unwilling to control.     Acosta, 19

 5   I. & N. Dec. at 222; see also Pavlova v. INS, 441 F.3d 82, 85

 6   (2d Cir. 2006).   Such harm must be sufficiently severe, rising

 7   above “mere harassment.”   Ivanishvili, 433 F.3d at 341.

 8       Here, the agency reasonably found that the mistreatment

 9   experienced by Aquino in the Philippines did not rise to the

10   level of persecution.   Aquino testified that armed members of

11   the security forces in the Philippines came to her home asking

12   for the whereabouts of her husband, who had gone into hiding

13   after being accused of organizing a coup, and that the

14   security forces followed her to her son’s school and stopped

15   their car on several occasions.     None of the incidents

16   described by Aquino rise above “mere harassment.” Ivanishvili,

17   433 F.3d at 341; see Mei Fun Wong v. Holder, 633 F.3d 64, 72

18   (2d Cir. 2011) (“We have emphasized that persecution is an

19   extreme concept that does not include every sort of treatment

20   that our society regards as offensive.”) (internal citation

21   and quotation marks omitted).     Although Aquino also testified

22   that security forces once threatened to kill her and her son


                                     4
 1   if they did not find her husband, substantial evidence

 2   supports the agency’s conclusion that the encounter did not

 3   rise above mere harassment.

 4        Aquino argues that the agency erred in failing to

 5   consider whether the psychological harm she experienced in the

 6   Philippines rises to the level of persecution.     But the IJ

 7   expressly considered the possibility that Aquino might have

 8   experienced persecution in the form of psychological harm, and

 9   rejected it.   Accordingly, substantial evidence supports the

10   agency’s conclusion that Aquino did not establish that she had

11   experienced past persecution in the Philippines.

12       The agency also determined that Aquino failed to

13   demonstrate that she had a well-founded fear of future

14   persecution in the Philippines.    Aquino’s expert witness

15   described an incident in which security forces rounded up and

16   briefly detained the families of former military personnel who

17   had gone into hiding after attempting a mutiny, in order to

18   compel the military personnel to surrender.    However, brief

19   periods of detention do not constitute persecution.     See

20   Joaquin-Porras v. Gonzales, 435 F.3d 172, 182 (2d Cir. 2006).

21   Furthermore, the agency reasonably concluded that Aquino was

22   not likely to be subject to surveillance and detention to find


                                    5
 1   the whereabouts of her husband, who was arrested and convicted

 2   of espionage in the United States, and whom the Philippines

 3   was seeking to extradite.

 4       Finally, Aquino does not challenge the agency’s

 5   determination that she failed to demonstrate that she was, or

 6   would be, mistreated in the Philippines on account of a

 7   protected ground.

 8       For the foregoing reasons, the petition for review is

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

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

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

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

13   Any pending request for oral argument in this petition is

14   DENIED in accordance with Federal Rule of Appellate Procedure

15   34(a)(2), and Second Circuit Local Rule 34.1(b).

16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk
18
19




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