         11-4336
         Elizondo-Badilla v. Holder
                                                                                        BIA
                                                                                 Verrillo, IJ
                                                                               A089 082 036
                                  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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of April, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _______________________________________
12
13       ALBERTO ELIZONDO-BADILLA, AKA ALBERTO
14       ELIZONDOLBADILLA, AKA ALBERTO ELIZONDO,
15       AKA ALBERTO BADILLA PIEDRA, AKA ALBERTO
16       ELIZONDO BRENES,
17
18                                     Petitioner,
19
20                            v.                                11-4336
21                                                              NAC
22       ERIC H. HOLDER, JR., UNITED STATES
23       ATTORNEY GENERAL,
24
25                         Respondent.
26       ______________________________________
27
28       FOR PETITIONER:                   Elyssa N. Williams, Formica
29                                         Williams, P.C., New Haven, CT.
30
 1   FOR RESPONDENT:         Stuart F. Delery, Acting Assistant
 2                           Attorney General; Carl H. McIntyre,
 3                           Assistant Director; John J. W.
 4                           Inkeles, Trial Attorney, Office of
 5                           Immigration Litigation, Civil
 6                           Division, United States Department
 7                           of Justice, Washington, DC.
 8
 9         UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13         Petitioner Alberto Elizondo-Badilla, a native and

14   citizen of Costa Rica, seeks review of a September 21, 2011,

15   order of the BIA affirming the Immigration Judge’s April 9,

16   2010, decision denying his application for asylum,

17   withholding of removal, and relief under the Convention

18   Against Torture (“CAT”).   In re Alberto Elizondo-Badilla,

19   No. A089 082 036 (B.I.A. Sep. 21, 2011), aff’g No. 089 082

20   036   (Immig. Ct. Hartford Apr. 9, 2010).   We assume the

21   parties’ familiarity with the underlying facts and

22   procedural history in this case.

23         Under the circumstances of this case, we have reviewed

24   the IJ’s decision as supplemented by the BIA.    See Yan Chen

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

26   applicable standards of review are well-established.      See


                                   2
 1

 2   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

 3   510, 513 (2d Cir. 2009).

 4       Elizondo-Badilla does not challenge the agency’s

 5   pretermission of his asylum application as untimely.

 6   Accordingly, we address only the agency’s conclusion that

 7   Elizondo-Badilla did not establish his eligibility for

 8   withholding of removal or CAT relief.    To establish

 9   eligibility for withholding of removal or CAT relief, an

10   applicant must establish that it is more likely than not

11   that, if he is returned, his “life or freedom would be

12   threatened,” 8 C.F.R. § 1208.16(b)(1) (withholding), or he

13   would be tortured, id. § 1208.16(c) (CAT relief).

14       Elizondo-Badilla argues that he suffered past

15   persecution in Costa Rica, which would create a regulatory

16   presumption that he faced future harm.    See id.

17   § 1208.16(b)(1).   However, the IJ reasonably concluded that

18   Elizondo-Badilla did not suffer past persecution because the

19   only harm he suffered consisted of unfulfilled threats.     See

20   Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir.

21   2006) (per curiam) (noting that courts have rejected the

22   argument that unfulfilled threats constitute persecution).


                                   3
 1

 2       While the threats were not past persecution, they were

 3   relevant to what might happen to Elizondo-Badilla if he

 4   returned to Costa Rica.     However, substantial evidence

 5   supports the IJ’s conclusion that despite the past threats,

 6   Elizondo-Badilla did not establish that it was more likely

 7   than not that he would be harmed if he returned to Costa

 8   Rica.     As the IJ noted, Elizondo-Badilla was never harmed in

 9   Costa Rica during the period he received the threats, nor

10   were members of his family who remain in Costa Rica.        Thus,

11   the IJ reasonably concluded that it was unlikely that

12   Elizondo-Badilla would be harmed if he returned to Costa

13   Rica several years after he was first threatened.

14       Because the record supports the IJ’s conclusion that

15   Elizondo-Badilla did not establish that he would be harmed,

16   it is not necessary to address his challenge to the IJ and

17   BIA’s findings that he did not establish his eligibility for

18   withholding because he failed to demonstrate the necessary

19   nexus between any harm he might suffer and a protected

20   ground.

21       For the foregoing reasons, the petition for review is

22   DENIED.     As we have completed our review, any stay of



                                     4
 1   removal that the Court previously granted in this petition

 2   is VACATED, and any pending motion for a stay of removal in

 3   this petition is DISMISSED as moot.    Any pending request for

 4   oral argument in this petition is DENIED in accordance with

 5   Federal Rule of Appellate Procedure 34(a)(2), and Second

 6   Circuit Local Rule 34.1(b).

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




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