Hernandez-Garcia v. Holder
Hernandez-Garcia v. Holder
Opinion
SUMMARY ORDER
Petitioner Nasaria Hernandez-Garcia, a native and citizen of Guatemala, seeks review of a September 6, 2011, decision of the BIA, dismissing her appeal from the August 9, 2010, decision of Immigration Judge (“IJ”) Alan A. Vomacka, which denied her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In re Nasaria Hernandez-Garcia, No. A088 673 392 (B.I.A. Sept. 6, 2011), aff'ing, No. A088 673 392 (Immig. Ct. N.Y.C. Aug. 9, 2010). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Under the circumstances presented, we review both the IJ’s and the BIA’s decisions “for the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well established. See, e.g., Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
Hernandez-Garcia challenges first the IJ’s credibility determination. As the Government correctly asserts, however, because she did not raise this argument in her appeal to the BIA, it is unexhausted and we will not consider it. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122-23 (2d Cir. 2007). Next, Hernandez-Garcia contends that, in determining that she failed to produce sufficient corroborating evidence to support her claims for relief, the agency failed to adhere to the rule articulated in Diallo v. I.N.S., 232 F.3d 279, 290 (2d Cir. 2000), that requires *208 the agency to identify what specific evidence should have been submitted and explain why it was reasonable to expect that such evidence was available. Yet this rule is applicable only “when the IJ or BIA cites inadequate corroboration as a basis for denying relief to an applicant who is otherwise credible.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006) (internal quotation marks and brackets omitted). Here, by comparison, the IJ found that Hernandez-Garcia was not “otherwise credible,” id., so he had no obligation to identify what specific corroborating evidence should have been submitted.
Finally, contrary to Hernandez-Garcia’s assertions, we conclude that substantial evidence supports the agency’s determination that the mistreatment she suffered did not rise to the level of persecution. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006) (to constitute persecution, the harm suffered must be sufficiently severe, rising above “mere harassment”). Although the February 2007 home-invasion incident was undoubtedly traumatic, Hernandez-Garcia does not allege that she sustained any physical injuries, and the remainder of the record evidence shows only that she was the victim of various verbal threats. Cf. Jian Qiu Liu v. Holder, 632 F.3d 820, 821-22 (2d Cir. 2011) (per curiam) (upholding the agency’s determination that slaps, repeated punches, and a short detention did not amount to persecution where there were “no lasting physical effect[s]”).
Together, these facts validate the agency’s determination that Hernandez-Garcia did not suffer past persecution, and, because she therefore is not entitled to a regulatory presumption of a well-founded fear of future persecution based on these same events, see 8 C.F.R. § 208.13(b)(1), the agency did not err by denying her claims for asylum and withholding of removal, see Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 1
For the foregoing reasons, the petition for review is DENIED.
. 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).
Reference
- Full Case Name
- Nasaria HERNANDEZ-GARCIA, AKA Nazaria Hernandez-Garcia, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
- Status
- Unpublished