         11-1968-ag
         Boveda v. Holder
                                 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 21st day of February, two thousand twelve.
 5
 6       PRESENT: BARRINGTON D. PARKER,
 7                RICHARD C. WESLEY,
 8                SUSAN L. CARNEY,
 9                         Circuit Judges.
10
11
12       CAROLINA ELIZABET BOVEDA, FLORENCIA
13       ANDREA BOVEDA,
14                     Petitioners,
15
16                       v.                                                 11-1968-ag
17                                                                          NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                     Respondent.
21
22
23
24       FOR PETITIONER:                      MATTHEW L. KOLKEN, Kolken & Kolken,
25                                            Buffalo, New York.
26
27       FOR RESPONDENT:                      TONY WEST, Assistant Attorney
28                                            General (Terri J. Scadron, Assistant
29                                            Director, Siu P. Wong, Trial
30                                            Attorney, Office of Immigration
31                                            Litigation, on the brief), for Eric
32                                            H. Holder, Jr., United States
33                                            Attorney General, Washington, D.C.
34
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 DISMISSED, in part, and DENIED, in part.

5        Petitioners Carolina Elizabet Boveda and Florencia

6    Andrea Boveda, sisters, natives and citizens of Argentina,

7    seek review of an April 21, 2011 order of the BIA, affirming

8    a March 20, 2009 decision of Immigration Judge (“IJ”) Philip

9    J. Montante, Jr., which pretermitted their applications for

10   asylum and denied their applications for withholding of

11   removal and relief under the Convention Against Torture

12   (“CAT”).     In re Carolina Elizabet Boveda, Florencia Andrea

13   Boveda, Nos. A099 757 097/098 (B.I.A. Apr. 21, 2011), aff’g

14   Nos. A099 757 097/098 (Immig. Ct. Buffalo Mar. 20, 2009).

15   We assume the parties’ familiarity with the underlying

16   facts, procedural history, and issues presented for review.

17       Under the circumstances of this case, we review the

18   IJ’s decision as supplemented by the BIA.     See Ming Xia Chen

19   v. Bd. of Immigration Appeals, 435 F.3d 141, 144 (2d Cir.

20   2006).     The applicable standards of review are

21   well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

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


                                     2
1        We do not have jurisdiction to review the agency’s

2    finding that Petitioners’ asylum applications were untimely

3    under 8 U.S.C. § (a)(2)(B), or its finding of neither

4    changed nor extraordinary circumstances excusing the

5    untimeliness under 8 U.S.C. § 1158(a)(2)(D).    See 8 U.S.C. §

6    1158(a)(3).    Although we retain jurisdiction to review

7    questions of law and constitutional claims, 8 U.S.C. §

8    1252(a)(2)(D), Petitioners’ challenge to the IJ’s finding

9    that they did not establish changed circumstances is simply

10   a challenge to the agency’s fact-finding, over which we do

11   not have jurisdiction.    Accordingly, we dismiss the petition

12   with respect to asylum and address only Petitioners’

13   challenge to the denial of withholding of removal and CAT

14   relief.

15       The agency did not err in finding that the harm

16   Petitioners suffered in Argentina did not rise to the level

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

18   433 F.3d 332, 341-42 (2d Cir. 2006).    Here, Carolina

19   described an incident in 2000 where a man grabbed her arm

20   and threatened her.    This did not “rise above mere

21   harassment.”    Tian-Yong Chen v. U.S. Immigration and

22   Naturalization Serv., 359 F.3d 121, 128 (2d Cir. 2004)

23   (internal quotation marks and citations omitted).


                                    3
1    Similarly, while Petitioners argue that they have indirectly

2    received threats from their uncle, courts have “rejected

3    [persecution] claims involving ‘unfulfilled’ threats.”     Gui

4    Ci Pan v. U.S. Attorney Gen., 449 F.3d 408, 412 (2d Cir.

5    2006) (citations omitted). Although Petitioners assert that

6    the kidnaping of their father rose to the level of

7    persecution, as the agency correctly noted, persecution of

8    family members cannot form the basis for a finding of past

9    persecution of Petitioners.   See Melgar de Torres v. Reno,

10   191 F.3d 307, 313 n.2 (2d Cir. 1999).

11       The agency also did not err in finding that Petitioners

12   failed to establish a well-founded fear of future

13   persecution.   See Jian Xing Huang v. U.S. Immigration and

14   Naturalization Serv., 421 F.3d 125, 129 (2d Cir. 2005)

15   (holding that absent solid support in the record for the

16   petitioner’s assertion that he would be persecuted, his fear

17   was “speculative at best”).   In making this determination,

18   the agency reasonably relied on the fact that their

19   similarly-situated sister, who is also a member of the New

20   Apostolic Church and not active in politics, has continued

21   to live in Argentina unharmed.    See Melgar de Torres, 191

22   F.3d at 313.   In addition, Petitioners failed to demonstrate

23   that their fear was objectively reasonable by supporting


                                   4
1    their contention that their uncle was involved in human

2    trafficking with testimony of a single threat by an

3    individual who accosted Carolina and vague statements that

4    they learned about their uncle’s threats from their father.

5    See Jian Xing Huang, 421 F.3d at 128-29.   There is also no

6    support for Petitioners’ contention that credible testimony

7    alone, regardless of its level of detail, is sufficient as a

8    matter of law to demonstrate entitlement to relief.   See

9    Jian Hui Shao v. Mukasey, 546 F.3d 138, 162 (2d Cir. 2008)

10   (while “credible testimony was sufficient to demonstrate a

11   genuine subjective fear of future persecution, more was

12   needed to demonstrate the objective reasonableness of that

13   fear”).   Under these circumstances, the agency did not err

14   in finding that Petitioners failed to establish a

15   well-founded fear of persecution.   See Jian Xing Huang, 421

16   F.3d at 129; Melgar de Torres, 191 F.3d at 313.

17       Because Petitioners were unable to show either past

18   persecution or a clear probability of future persecution in

19   Argentina, the agency did not err in denying Petitioners’

20   applications for withholding of removal, as well as their

21   applications for CAT relief, as those claims were based on

22   the same factual predicate.   See 8 C.F.R. § 1208.16(b)(1);

23   Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006);

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

                                   5
1        For the foregoing reasons, the petition for review is

2    DISMISSED, in part, and DENIED, in part.   As we have

3    completed our review, any stay of removal that the Court

4    previously granted in this petition is VACATED, and any

5    pending motion for a stay of removal in this petition is

6    DISMISSED as moot.   Any pending request for oral argument in

7    this petition is DENIED in accordance with Federal Rule of

8    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

 9   34.1(b).
10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk
12
13




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