     17-1631
     Maldonado v. Barr
                                                                                      BIA
                                                                               Vomacka, IJ
                                                                  A029 132 723/071 591 727

                              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 TO 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 Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 12th day of June, two thousand nineteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            ROSEMARY S. POOLER,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   RAMIRO MALDONADO, ADELMA
14   MALDONANDO,
15            Petitioners,
16
17                       v.                                      17-1631
18                                                               NAC
19   WILLIAM P. BARR,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONERS:                    E. Abel Arcia, Law offices of
25                                       Arcia & Associates, Jackson
26                                       Heights, NY.
27
28   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
29                                       Attorney General; Shelley R. Goad,
30                                       Assistant Director; Carmel A.
31                                       Morgan, Trial Attorney, Office of
1                                 Immigration Litigation, United
2                                 States Department of Justice,
3                                 Washington, DC.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

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

8    is DENIED.

9        Petitioners     Ramiro   Maldonado   and   Adelma   Maldonando,

10   natives and citizens of Guatemala, seek review of April 20,

11   2017 and September 22, 2011, decisions of the BIA reversing

12   an August 24, 2009, decision of an Immigration Judge (“IJ”)

13   granting   Ramiro   Maldonado’s   application    for    asylum,   and

14   affirming a February 24, 2016, order of removal.        In re Ramiro

15   Maldonado and Adelma Maldonando, No. A 029 132 723/071 591 727

16   (B.I.A. Sept. 22, 2011 and Apr. 20, 2017), rev’g No. A 029 132

17   723/071 591 727 (Immig. Ct. N.Y. City Aug. 24, 2009 and Feb.

18   24, 2016).    We assume the parties’ familiarity with the

19   underlying facts and procedural history in this case.

20       Because the BIA reversed the IJ’s grant of asylum, we

21   have reviewed the BIA’s ruling as the final agency decision.

22   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

23   The applicable standards of review are well established.          See
                                       2
1    8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

2    510, 513 (2d Cir. 2009) (reviewing factual findings for

3    substantial evidence and questions of law and the application

4    of law to undisputed facts de novo).

5        The   BIA    did   not   err   in     reviewing     de   novo    whether

6    Maldonado’s kidnapping rose to the level of persecution.

7    Whether the harm that an asylum applicant has suffered rises

8    to the level of persecution is a legal question that the BIA

9    may review de novo.     See 8 C.F.R. § 1003.1(d)(3)(ii); Edimo-

10   Doualla   v.    Gonzales,    464   F.3d    276,   282    (2d   Cir.   2007)

11   (concluding that whether harm rose to the level of persecution

12   “involves the application of a legal standard to established

13   facts” and is subject to de novo review).                      Maldonado’s

14   reliance on Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.

15   2012), is misplaced. In Hui Lin Huang, we held that the IJ’s

16   finding of the likelihood of a future event is a finding of

17   fact that the BIA may review only for clear error.                  677 F.3d

18   at 131.   But this was not the issue in Maldonado’s case.               The

19   dispositive issue before the BIA was whether the stated harm

20   rose to the level of persecution, and that issue involves an

21   application of law to fact that was subject to de novo review.
                                         3
1    Edimo-Doualla, 464 F.3d at 282; see also Alom v. Whitaker,

2    910 F.3d 708, 712 (2d Cir. 2018) (reiterating that BIA reviews

3    de novo whether facts meet legal standard).

4          Furthermore, the BIA did not err in determining that the

5    kidnapping did not constitute past persecution.         While the

6    Immigration and Nationality Act does not define persecution,

7    see Baba v. Holder, 569 F.3d 79, 85 (2d Cir. 2009), the BIA

8    has defined it as a “threat to the life or freedom of, or the

9    infliction of suffering or harm upon, those who differ in a

10   way regarded as offensive,” Matter of Acosta, 19 I. & N. Dec.

11   211, 222 (BIA 1985), overruled in part on other grounds by

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

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

14   Cir. 2006).    The harm must be sufficiently severe, rising

15   above “mere harassment.”      Ivanishvili, 433 F.3d at 341; see

16   also Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)

17   (“We have emphasized that persecution is an extreme concept

18   that does not include every sort of treatment our society

19   regards as offensive.” (internal quotation marks omitted)).

20         Maldonado claimed that in 1996 he was held for four hours

21   by guerillas who threatened him and screamed at him, but that
                                      4
1    he was released when the guerillas saw some army trucks.      He

2    argues that the BIA erred because a single incident can be

3    persecution and the BIA failed to explain how it concluded

4    that the kidnapping was not persecution.      However, the BIA

5    relied both on the fact that the kidnapping was the only

6    incident and that Maldonado was released without any harm.

7    Maldonado’s allegation of emotional and psychological harm

8    does not alone establish that the incident rises to the level

9    of persecution.    See Ivanishvili, 433 F.3d at 341 (explaining

10   that harassment includes actions that cause, inter alia,

11   “substantial emotional distress.” (citation omitted)).

12       Here, the context of the kidnapping does not support a

13   finding of the level of harm required to find persecution:

14   Maldonado was held for only four hours, he did not know why

15   he was taken, he alleged but did not describe threats, and he

16   alleged no physical mistreatment.    See Beskovic v. Gonzales,

17   467 F.3d 223, 226 (2d Cir. 2006) (holding that agency must

18   consider context in determining whether harm rises to the

19   level   of   persecution).   Furthermore,   Maldonado   did   not

20   testify that he feared that he would be killed during the

21   1996 kidnapping.    Cf. Delgado v. Mukasey, 508 F.3d 702, 708
                                    5
1    (2d Cir. 2007).        Accordingly, given the context, including

2    the short duration and lack of physical harm, the BIA did not

3    err in concluding that this single incident did not constitute

4    past persecution.      See Beskovic, 467 F.3d at 226.

5        That the level of harm did not rise to the level of past

6    persecution    is   dispositive     of    Maldonado’s   asylum   claim.

7    Maldonado     argues    that   he   merits     humanitarian      asylum.

8    However, past persecution is a requirement for that relief.

9    8 C.F.R. § 1208.13(b)(1)(iii).           Because the issue of whether

10   the harm rises to the level of past persecution is dispositive

11   of asylum, we do not reach the BIA’s alternative conclusion

12   that any past harm was not on account of a protected ground.

13   See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general

14   rule courts and agencies are not required to make findings on

15   issues the decision of which is unnecessary to the results

16   they reach.”).

17       For the foregoing reasons, the petition for review is

18   DENIED.

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



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