         11-3985
         Hernandez-Garcia v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A088 673 392
                                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 28th day of June, two thousand twelve.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                ROBERT A. KATZMANN,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       ______________________________________
12
13       NASARIA HERNANDEZ-GARCIA, AKA NAZARIA
14       HERNANDEZ-GARCIA,
15                Petitioner,
16                                                              11-3985
17                           v.                                 NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                 Mario DeMarco, Law Office of Mario
25                                       DeMarco, P.C., Port Chester, New
26                                       York.
27
28       FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
29                                       Attorney General; Blair T. O’Connor,
30                                       Assistant Director; Remi Da Rocha-
31                                       Afodu, Attorney, Office of
32                                       Immigration Litigation, Civil
33                                       Division, United States Department
34                                       of Justice, 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       Petitioner Nasaria Hernandez-Garcia, a native and

 6   citizen of Guatemala, seeks review of a September 6, 2011,

 7   decision of the BIA, dismissing her appeal from the August

 8   9, 2010, decision of Immigration Judge (“IJ”) Alan A.

 9   Vomacka, which denied her application for asylum,

10   withholding of removal, and protection under the Convention

11   Against Torture (“CAT”).   In re Nasaria Hernandez-Garcia,

12   No. A088 673 392 (B.I.A. Sept. 6, 2011), aff’ing, No. A088

13   673 392 (Immig. Ct. N.Y.C. Aug. 9, 2010).   We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history of the case.

16       Under the circumstances presented, we review both the

17   IJ’s and the BIA’s decisions “for the sake of completeness.”

18   Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006).     The

19   applicable standards of review are well established.     See,

20   e.g., Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.

21   2008).

22



                                   2
 1       Hernandez-Garcia challenges first the IJ’s credibility

 2   determination.    As the Government correctly asserts,

 3   however, because she did not raise this argument in her

 4   appeal to the BIA, it is unexhausted and we will not

 5   consider it.     See Lin Zhong v. U.S. Dep’t of Justice, 480

 6   F.3d 104, 122-23 (2d Cir. 2007).    Next, Hernandez-Garcia

 7   contends that, in determining that she failed to produce

 8   sufficient corroborating evidence to support her claims for

 9   relief, the agency failed to adhere to the rule articulated

10   in Diallo v. I.N.S., 232 F.3d 279, 290 (2d Cir. 2000), that

11   requires the agency to identify what specific evidence

12   should have been submitted and explain why it was reasonable

13   to expect that such evidence was available.    Yet this rule

14   is applicable only “when the IJ or BIA cites inadequate

15   corroboration as a basis for denying relief to an applicant

16   who is otherwise credible.”     Xiao Ji Chen v. U.S. Dep’t of

17   Justice, 471 F.3d 315, 341 (2d Cir. 2006) (internal

18   quotation marks and brackets omitted).    Here, by comparison,

19   the IJ found that Hernandez-Garcia was not “otherwise

20   credible,” id., so he had no obligation to identify what

21   specific corroborating evidence should have been submitted.

22



                                     3
 1       Finally, contrary to Hernandez-Garcia’s assertions, we

 2   conclude that substantial evidence supports the agency’s

 3   determination that the mistreatment she suffered did not

 4   rise to the level of persecution.   See Ivanishvili v. U.S.

 5   Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006) (to

 6   constitute persecution, the harm suffered must be

 7   sufficiently severe, rising above “mere harassment”).

 8   Although the February 2007 home-invasion incident was

 9   undoubtedly traumatic, Hernandez-Garcia does not allege that

10   she sustained any physical injuries, and the remainder of

11   the record evidence shows only that she was the victim of

12   various verbal threats.   Cf. Jian Qiu Liu v. Holder, 632

13   F.3d 820, 821-22 (2d Cir. 2011) (per curiam) (upholding the

14   agency’s determination that slaps, repeated punches, and a

15   short detention did not amount to persecution where there

16   were “no lasting physical effect[s]”).

17       Together, these facts validate the agency’s

18   determination that Hernandez-Garcia did not suffer past

19   persecution, and, because she therefore is not entitled to a

20   regulatory presumption of a well-founded fear of future

21   persecution based on these same events, see 8 C.F.R. §

22   208.13(b)(1), the agency did not err by denying her claims


                                   4
 1   for asylum and withholding of removal, see Paul v. Gonzales,

 2   444 F.3d 148, 156 (2d Cir. 2006).1

 3       For the foregoing reasons, the petition for review is

 4   DENIED.

 5                               FOR THE COURT:
 6                               Catherine O’Hagan Wolfe, Clerk
 7
 8
 9
10




            1
             In her brief to this Court, Hernandez-Garcia does
       not challenge the IJ’s denial of her claims for CAT
       relief. Even if she did, we would lack jurisdiction to
       consider such a challenge, since she did not raise the
       issue in her appeal to the BIA. See, e.g., Karaj v.
       Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
                                  5
