     17-4012
     Kamilova v. Barr
                                                                                   BIA
                                                                               Leeds, IJ
                                                                           A205 444 888
                             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 14th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   AMIRA TEMIROVNA KAMILOVA,
14            Petitioner,
15
16                      v.                                       17-4012
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.*
21   _____________________________________
22
23   FOR PETITIONER:                    Nicholas J. Mundy, Nicholas J.
24                                      Mundy, Esq., PLLC, Brooklyn, NY.
25
26   FOR RESPONDENT:                    Joseph H. Hunt, Assistant
27                                      Attorney General; Briena L.
28                                      Strippoli, Senior Litigation
29                                      Counsel; Deitz P. Lefort, Trial

     *   The Clerk of the Court is respectfully requested to conform
     the case caption to the above.
1                              Attorney, Office of Immigration
2                              Litigation, United States
3                              Department of Justice, Washington,
4                              DC.
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         Petitioner Amira Temirovna Kamilova, a native and citizen

10   of Uzbekistan, seeks review of a November 27, 2017, decision

11   of   the   BIA   affirming   a   March   21,   2017,   decision    of   an

12   Immigration Judge (“IJ”) denying her asylum, withholding of

13   removal, and relief under the Convention Against Torture

14   (“CAT”), and denying her motion to remand.                In re Amira

15   Temirovna Kamilova, No. A205 444 888 (B.I.A. Nov. 27, 2017),

16   aff’g No. A205 444 888 (Immig. Ct. N.Y. City Mar. 21, 2017).

17   We assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19        Under the circumstances of this case, we have reviewed

20   the decision of the IJ as supplemented by the BIA.                See Yan

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

22   applicable standards of review are well established.                    See

23   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

24   F.3d 510, 513 (2d Cir. 2009).            The agency did not err in

                                         2
1    concluding that Kamilova failed to satisfy her burden of proof

2    for asylum, withholding of removal, and CAT relief based on

3    her claims that she (a) suffered past persecution, namely

4    because local government officials in Uzbekistan harassed her

5    when she worked as a school director on account of her Tajik

6    ethnicity     and    (b)     has      a    well-founded      fear     of   future

7    persecution, namely because officials will harm her in the

8    future on account of her Tajik ethnicity, her overstay of her

9    Uzbek exit visa, and her application for asylum.

10          A. Past Persecution

11          A valid past persecution claim can be based on harm other

12   than    threats     to   life      or      freedom,    including      “non-life-

13   threatening       violence      and       physical     abuse,”      Beskovic   v.

14   Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006) (alteration

15   and internal quotation marks omitted), but the harm must be

16   sufficiently        severe,     rising         above      “mere     harassment,”

17   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

18   Cir. 2006).       “‘[H]arassment’ is ‘words, conduct, or action

19   (usually repeated or persistent) that, being directed at a

20   specific    person,      annoys,          alarms,    or   causes     substantial

21   emotional distress in that person and serves no legitimate

22   purpose.’”        Id. (alterations omitted)(quoting Harassment,

                                                3
1    Black’s Law Dictionary 721 (7th ed. 1999)).                 In evaluating a

2    past persecution claim, the agency must consider the harm

3    suffered in the aggregate.             Poradisova v. Gonzales, 420 F.3d

4    70, 79-80 (2d Cir. 2005).

5           The    agency   did      not    err   in    concluding    that,   even

6    considered in the aggregate, officials berating Kamilova in

7    front of others at work and a prosecutor questioning her about

8    a radicalized student was not sufficiently extreme to rise

9    beyond       harassment    to    the    level     of   persecution.      See

10   Ivanishvili, 433 F.3d at 341; see also Mei Fun Wong v. Holder,

11   633 F.3d 64, 72 (2d Cir. 2011) (“We have emphasized that

12   persecution is an extreme concept that does not include every

13   sort     of    treatment     our      society     regards   as   offensive.”

14   (internal quotation marks omitted)).               Further, the agency did

15   not err in declining to consider the mafia’s murder of

16   Kamilova’s brother in Moscow based on his refusal to give up

17   his successful businesses in Uzbekistan because she was not

18   targeted for the same reason or present during his murder.

19   See Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007)

20   (noting that persecution of a family member may constitute

21   persecution to an applicant only if the two share “the

22   characteristic that motivated persecutors” and the applicant

                                              4
1    was “within the zone of risk when the family member was

2    harmed”); see also Shi Liang Lin v. U.S. Dep’t of Justice,

3    494 F.3d 296, 308 (2d Cir. 2007).

4        B. Well-Founded Fear of Future Persecution

5        Absent      past    persecution,    an    alien      may    establish

6    eligibility for asylum by demonstrating a well-founded fear

7    of future persecution, 8 C.F.R. § 1208.13(b)(2), which must

8    be both subjectively credible and objectively reasonable,

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

10   To demonstrate a well-founded fear, an applicant must show

11   either “a reasonable possibility . . . she would be singled

12   out individually for persecution” or that the country of

13   removal   has    a     “pattern    or   practice”       of     persecuting

14   individuals     similarly     situated       to   her.           8 C.F.R.

15   § 1208.13(b)(2)(iii).             “Pattern-and-practice          analysis

16   affords   a   petitioner    who   cannot     credibly    demonstrate    a

17   reasonable possibility that [s]he will be targeted as an

18   individual for future persecution an alternative means to

19   demonstrate that h[er] fear of persecution is objectively

20   reasonable.”    Jian Hui Shao v. Mukasey, 546 F.3d 138, 150 n.6

21   (2d Cir. 2008).

22       The agency found that Kamilova failed to satisfy her

                                        5
1    burden    of   proving   that     she       would    be    singled         out    for

2    persecution because she did not adequately corroborate her

3    testimony that government officials looked for her after she

4    left Uzbekistan, or that there was a pattern or practice of

5    persecution of ethnic Tajiks or individuals who return from

6    the United States having violated the terms of an Uzbek exit

7    visa or having applied for asylum.                As the Government argues,

8    Kamilova does not challenge these findings in her opening

9    brief and thus we need not consider them.                      See Yueqing Zhang

10   v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)

11   (noting that the Court does not consider issues that a

12   petitioner abandons by failing to raise them in an opening

13   brief).

14       We    note,     however,    that       the    agency       did   not    err   in

15   requiring Kamilova to corroborate her claim that officials

16   had interrogated and harmed her son and father while looking

17   for her because her testimony was vague and evasive in this

18   regard.    See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The testimony of

19   the applicant may be sufficient to sustain the applicant’s

20   burden    without    corroboration,         but    only    if     the   applicant

21   satisfies the trier of fact that the applicant’s testimony is

22   credible,      is   persuasive,   and        refers       to    specific     facts

                                            6
1    sufficient to demonstrate that the applicant is a refugee.”);

2    see also Wei Sun v. Sessions, 883 F.3d 23, 28 (2d Cir. 2018).

3    Further, although Kamilova submitted letters from her husband

4    and son, those letters did not corroborate her testimony but

5    rather undermined it given inconsistencies among them.                        See

6    8 U.S.C. § 1158(b)(1)(B)(iii) (providing that inconsistencies

7    between an applicant’s and witness’s statements supports an

8    adverse credibility determination).

9         The agency also did not err in determining that the

10   country    conditions       evidence    failed   to      establish     a    well-

11   founded fear of persecution by showing a pattern or practice

12   of   persecution       of   Tajiks     or   Uzbek     nationals       who   have

13   overstayed their Uzbek exit visa and applied for asylum.                        A

14   pattern    or   practice     of   persecution       is     the    “systemic    or

15   pervasive” persecution of a group.               In re A-M-, 23 I. & N.

16   Dec. 737, 741 (BIA 2005); see Mufied v. Mukasey, 508 F.3d 88,

17   92-93     (2d   Cir.    2007)     (recognizing        as     reasonable       the

18   “systemic, pervasive, or organized” standard for finding a

19   pattern or practice of persecution claim).                       But Kamilova’s

20   evidence described discrimination against Tajiks and only one

21   incident of persecution against a Tajik individual, and did

22   not discuss the persecution of any individuals who overstayed

                                            7
1    an Uzbek exit visa or who had applied for asylum in the United

2    States.

3        The agency’s conclusion that Kamilova failed to establish

4    a well-founded fear of persecution was dispositive of asylum,

5    withholding of removal, and CAT relief because all three

6    claims were based on the same factual predicates.    See Paul

7    v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).   Moreover,

8    the record equally supports the agency’s separate finding

9    that Kamilova failed to satisfy her burden for CAT relief

10   because she failed to submit any evidence that she would be

11   singled out for torture.   See Mu-Xing Wang v. Ashcroft, 320

12   F.3d 130, 144 (2d Cir. 2003) (noting requirement that CAT

13   applicant establish that “someone in his particular alleged

14   circumstances is more likely than not to be tortured”).

15       We do not reach the BIA’s denial of Kamilova’s motion to

16   remand because she does not raise it in her opening brief.

17   See Yueqing Zhang, 426 F.3d at 541 n.1, 545 n.7.

18       For the foregoing reasons, the petition for review is

19   DENIED.

20                         FOR THE COURT:
21                         Catherine O=Hagan Wolfe Clerk of Court
22
23


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