         10-3637-ag
         Retana-Constanza v. Holder
                                                                                          BIA
                                                                                   Verrillo, IJ
                                                                                 A072 797 391
                                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 22nd day of February, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _________________________________________
12
13       YONI ESTUARDO RETANA-CONSTANZA,
14                Petitioner,
15
16                          v.                                   10-3637-ag
17                                                               NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Jon E. Jessen, Stamford,
24                                       Connecticut.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General; Blair O’Connor, Assistant
28                                       Director; Kathryn Moore, Trial
29                                       Attorney, Office of Immigration
30                                       Litigation, United States Department
31                                       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       Yoni Estuardo Retana-Constanza, a native and citizen of

 6   Guatemala, seeks review of an August 10, 2010 order of the

 7   BIA affirming the December 9, 2008 decision of Immigration

 8   Judge (“IJ”) Philip Verrillo denying his application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).   In re Yoni Estuardo

11   Retana-Constanza, No. A072 797 391 (B.I.A. Aug. 10, 2010),

12   aff’g No. A072 797 391 (Immig. Ct. Hartford, CT Dec. 9,

13   2008).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

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

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

18   applicable standards of review are well-established.    See

19   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20       The agency reasonably found that the harm Retana-

21   Constanza suffered — being regularly chased and harassed by

22   both military recruiters and guerillas in Guatemala, and

23   scratches received while evading pursuers — was, when

                                   2
 1   considered in the aggregate, insufficiently severe to

 2   constitute persecution.   See Ivanishvili v. U.S. Dep’t of

 3   Justice, 433 F.3d 332, 341-42 (2d Cir. 2006).

 4       Because the agency reasonably concluded that Retana-

 5   Constanza did not suffer past persecution, he is not

 6   entitled to a presumption of future persecution.

 7   See 8 C.F.R. § 1208.13(b)(1).       To the extent he argues that

 8   he has a well-founded fear of future persecution independent

 9   from his claims of past persecution, the agency did not err

10   in finding that he did not demonstrate a nexus between his

11   fear of persecution and a protected ground.       As the

12   government notes, Retana-Constanza asserts for the first

13   time to this Court that he fears persecution on account of

14   the political opinion of his father, as imputed to him, and,

15   accordingly, we decline to consider that claim.       See Lin

16   Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20, 124

17   (2d Cir. 2007); Foster v. INS, 376 F.3d 75, 78 (2d Cir.

18   2004).   Retana-Constanza also argues that he fears

19   persecution on account of his membership in a particular

20   social group of minor-aged males who resisted recruitment by

21   both guerillas and the Guatemalan military.       A “particular

22   social group is comprised of individuals who possess some


                                     3
 1   fundamental characteristic in common which serves to

 2   distinguish them in the eyes of a persecutor—or in the eyes

 3   of the outside world in general.” Ucelo-Gomez v. Mukasey,

 4   509 F.3d 70, 73 (2d Cir. 2007) (quoting Gomez v. INS, 947

 5   F.2d 660, 664 (2d Cir. 1991)).     To the extent that minor-

 6   aged males share a fundamental characteristic in common,

 7   Retana-Constanza is no longer part of such a group, as he is

 8   now thirty-seven years old.

 9       Finally, Retana-Costanza argues that he fears

10   persecution on account of his political opinion, and defines

11   his political opinion as remaining neutral when pursued and

12   recruited by both guerillas and the Guatemalan military.

13   Resistance to recruitment by a guerilla movement alone is

14   not sufficient to show that any resulting persecution is on

15   account of political opinion because there are many reasons

16   why an individual might choose not to join a guerilla

17   movement, despite pressure to do so.     INS v. Elias-Zacarias,

18   502 U.S. 478, 482-83 (1992).     Unless a petitioner

19   demonstrates that a reason for not joining a movement was

20   his own political opinion, and that the movement or group

21   would seek to harm him on account of that political opinion,

22   he has not met his burden of showing the necessary nexus to


                                    4
 1   a protected ground.    Id.   Because Retana-Constanza did not

 2   testify that he feared harm on account of his political

 3   opinion, or present any evidence to that effect, the agency

 4   did not err in finding that he did not demonstrate that his

 5   claimed fear of persecution for resistance to joining either

 6   the guerillas or the military was on account of his

 7   political opinion.    See id.

 8       Accordingly, because Retana-Constanza failed to

 9   demonstrate that he suffered past persecution, or feared

10   future persecution on account of a protected ground, the

11   agency did not err in denying his application for asylum and

12   withholding of removal.      See 8 U.S.C. §§ 1101(a)(42),

13   1231(b)(3)(A).   Although Retana-Constanza argues that he has

14   demonstrated that it is more likely than not he will be

15   tortured if he returns to Guatemala, he has not presented

16   any evidence to support this claim, other than generalized

17   reports that Guatemalan police have engaged in torture,

18   abuse and mistreatment, which are insufficient to overturn

19   the agency’s denial of CAT relief.      See 8 C.F.R.

20   §§ 1208.16(c)(2), 1208.18(a); Mu Xiang Lin v. U.S. Dep’t of

21   Justice, 432 F.3d 156, 160 (2d Cir. 2005).

22

23
                                      5
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




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