         11-3307-ag                                                                       BIA
         Majid v. Holder                                                      Montante, Jr., IJ
                                                                               A094 894 724



                            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 Richard C. Lee United
 3       States Courthouse, 141 Church Street, in the City of New
 4       Haven, Connecticut, on the 25th day of May, two thousand
 5       twelve.
 6
 7       PRESENT:
 8                DENNIS JACOBS,
 9                     Chief Judge,
10                JON O. NEWMAN,
11                ROBERT D. SACK,
12                     Circuit Judges.
13       _______________________________________
14
15       ABDOOL RASHEED MAJID,
16                Petitioner,
17
18                         v.                                   11-3307-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _______________________________________
24
25       FOR PETITIONER:         Anne E. Doebler, Buffalo, NY.
26
27       FOR RESPONDENT:         Tony West, Assistant Attorney General;
28                               Jennifer P. Levings, Senior Litigation
29                               Counsel; Carmel A. Morgan, Trial
 1                     Attorney, Office of Immigration
 2                     Litigation, United States Department of
 3                     Justice, Washington, D.C.
 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       Petitioner Abdool Rasheed Majid, a native and citizen

10   of Guyana, seeks review of a July 14, 2011, order of the BIA

11   affirming the June 2, 2009, decision of Immigration Judge

12   (“IJ”) Phillip J. Montante, Jr., denying his application for

13   asylum, withholding of removal, and relief under the

14   Convention Against Torture (“CAT”).    In re Abdool Rasheed

15   Majid, No. A094 894 724 (B.I.A. July 14, 2011), aff’g No.

16   No. A094 894 724 (Immig. Ct. Buffalo, NY June 2, 2009).     We

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

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

22   applicable standards of review are well-established.     See 8

23   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

24   513 (2d Cir. 2009).   Because Majid does not raise any

25   challenge to the agency’s denial of CAT relief, we consider

26   only its denial of asylum and withholding of removal.

                                   2
 1   I.   Asylum

 2        As a preliminary matter, this Court lacks jurisdiction

 3   to review the pretermission of his asylum application unless

 4   he raises a constitutional claim or question of law.     See 8

 5   U.S.C. §§ 1158(a)(3); 1252(a)(2)(D).     He fails to do so.

 6        Majid argues that he did not apply for asylum based on

 7   his fear that he would be persecuted as a deportee because

 8   he did not believe that he was subject to removal.     However,

 9   he did not previously assert this basis for excusing his

10   failure to timely file for asylum.     Because he bears the

11   burden of establishing changed or extraordinary

12   circumstances, see 8 U.S.C. § 1158(a)(2)(D), and failed to

13   exhaust the issue before the agency, we decline to consider

14   his argument.   See Lin Zhong v. U.S. Dep’t of Justice, 480

15   F.3d 104, 119-20 (2d Cir. 2007) (describing the issue

16   exhaustion requirement as mandatory).     Furthermore, the IJ

17   did not err by considering solely the period between the

18   date of Majid’s entry to the United States and the date he

19   filed his asylum application in determining whether a

20   material change in circumstances had occurred.     See 8 U.S.C.

21   § 1158(a)(2)(D), 8 C.F.R. § 1208.4(a)(4)(i)(A).     Because

22   Majid failed to assert a reviewable question regarding the


                                   3
 1   IJ’s pretermission of application, we lack jurisdiction to

 2   review that decision.   See 8 U.S.C. § 1158(a)(2)(B), (3).

 3   II. Withholding of Removal

 4       Majid argues that he is entitled to a presumption of

 5   future harm because he suffered past persecution at the

 6   hands of Afro-Guyanese men who, due to his Indian ancestry,

 7   burglarized him home, beat his father, and threatened to

 8   kill him and his family if he reported the incident.     To the

 9   contrary, the IJ reasonably found that the unfulfilled

10   threats and harm to his relative alone did not rise to the

11   level of persecution.   See Ivanishvili v. U.S. Dep’t of

12   Justice, 433 F.3d 332, 342 (2d Cir. 2006) (holding that harm

13   must be sufficiently severe, rising above mere harassment,

14   to constitute persecution); Gui Ci Pan v. U.S. Attorney

15   Gen., 449 F.3d 408, 412 (2d Cir. 2006) (noting that courts

16   have “rejected [persecution] claims involving ‘unfulfilled’

17   threats’”).

18       The IJ also reasonably found that Majid failed to

19   establish that his ethnicity or any other protected ground

20   was “one central reason” the burglars targeted him.     Because

21   the REAL ID Act applies to Majid’s application, he is

22   required to show that his race, religion, nationality,


                                   4
 1   political opinion, or particular social group is “one

 2   central reason” he is persecuted.     See 8 U.S.C.

 3   §§ 1101(a)(42), 1158(b)(1)(B)(i); Matter of C-T-L-, 25 I. &

 4   N. Dec. 341, 344-46 (BIA 2010) (extending the “one central

 5   reason” standard to withholding of removal).     However, the

 6   documentary evidence he submitted indicated that Indo-

 7   Guyanese individuals may have been targeted because of their

 8   perceived wealth, and Majid testified that he lived in a

 9   middle-class neighborhood and the burglars left once they

10   received the money and jewelry they demanded.

11       Absent the presumption of future harm, an applicant can

12   establish a well-founded fear of persecution by

13   demonstrating either that: (1) he will be targeted

14   individually; or (2) that a group to which he belongs is

15   persecuted and that persecution is “‘so systemic or

16   pervasive as to amount to a pattern or practice of

17   persecution.’”     See Mufied v. Mukasey, 508 F.3d 88, 91 (2d

18   Cir. 2007) (quoting In re A-M-, 23 I. & N. Dec. 737, 741

19   (BIA 2005)).     Majid argues that he established a well-

20   founded fear of future persecution on account of his

21   ethnicity and, if he is removed, his status as a deportee.

22   However, the 2008 State Department Human Rights Report did

23   not report any societal abuses or discrimination against
                                     5
 1   Indo-Guyanese or deportees.    Although several reports note

 2   incidents in which gangs murdered Indo-Guyanese individuals,

 3   those reports do not definitively state that those

 4   individuals were targeted due to their ethnicity.    Moreover,

 5   the report Majid submitted about criminal deportees states

 6   that the government conducts surveillance on deportees who

 7   are a public safety risk, but does not indicate that gangs

 8   target deportees.

 9       Furthermore, the BIA did not err in finding that

10   Majid’s fear of future persecution was undermined by the

11   IJ’s finding that Majid’s mother remained in Guyana without

12   incident after the burglary until her death apparently of

13   natural causes (see JA 193) in 2008.    See Melgar de Torres

14   v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding that

15   claim of well-founded fear was diminished when asylum

16   applicant’s mother and daughters continued to live in

17   applicant’s native country).

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

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

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

23   oral argument in this petition is DENIED in accordance with

                                    6
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5




                                   7
