15-3840 Martin v. Sessions BIA Segal, IJ A079 252 661

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of February, two thousand eighteen.

PRESENT: ROSEMARY S. POOLER, REENA RAGGI, PETER W. HALL, Circuit Judges. _____________________________________

FABIAN R. MARTIN, AKA FABIAN RODRIGO MARTIN-BELTRAN, Petitioner,

v. 15-3840 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Samuel N. Iroegbu, Albany, N.Y.

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Linda Y. Cheng, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DISMISSED IN PART and DENIED IN PART.

Petitioner Fabian Martin, a native and citizen of

Colombia, seeks review of the BIA’s affirmance of an

Immigration Judge’s (“IJ’s”) denial of asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In re Fabian R. Martin, No. A079 252 661 (B.I.A.

Oct. 28, 2015), aff’g No. A079 252 661 (Immig. Ct. N.Y.C.

Mar. 12, 2014). Under the circumstances of this case, we

review the IJ’s decision as supplemented by the BIA, see Yan

Chen v. Gonzales,

(2d Cir. 2005), applying

well-established standards of review, see

(b)(4)(B); Yanqin Weng v. Holder,

(2d

Cir. 2009). In so doing, we assume the parties’ familiarity

with the underlying facts and procedural history of this case,

which we reference only as necessary to explain our decision

to deny the petition in part and to dismiss the petition in

part.

I. Asylum

We dismiss Martin’s petition as it relates to the

agency’s pretermission of his asylum application as untimely. 2 An asylum application must be filed within one year of an

applicant’s arrival in the United States, absent changed or

extraordinary circumstances. See

(a)(2)(B),

(D). Although we lack jurisdiction to review the agency’s

pretermission of asylum on timeliness grounds, we retain

jurisdiction to review “constitutional claims or questions of

law.”

(a)(2)(D). In order to ascertain

whether a petitioner raises such a constitutional challenge

or question of law, we must determine “whether [the petition]

merely quarrels over the correctness of the factual finding

or justification for the discretionary choices, in which case

the court would lack jurisdiction.” Xiao Ji Chen v. U.S.

Dep’t of Justice,

(2d Cir. 2006).

Martin’s assertion that the BIA failed to consider the

facts and circumstances of his case is contradicted by the

record and merely quarrels with the correctness of the

agency’s discretionary determination that he failed to file

his application within a reasonable time of what the agency

assumed to be an exceptional circumstance—Martin’s mistaken

belief that his 2002 application for adjustment of status was

an asylum application. See

As the agency observed, even

if Martin mistakenly believed that his application to adjust

status was an asylum application, that application was denied 3 in 2004, and Martin failed to pursue an asylum claim until

filing his asylum application more than 7 years later in 2012.

Moreover, while Martin now contends that he filed an asylum

application before applying to adjust status, he specifically

identified his adjustment application as what he believed to

be his prior asylum application. Because Martin fails to

raise a constitutional or legal challenge to the agency

pretermission of asylum, we lack jurisdiction to review that

determination.

II. Withholding of Removal

To establish eligibility for withholding of removal, an

applicant must show a likelihood that his “life or freedom

would be threatened in [Colombia] because of [his] race,

religion, nationality, membership in a particular social

group, or political opinion.”

(b)(3)(A); see

§ 1101(a)(42);

(b). A showing of past

persecution creates a rebuttable presumption of a likelihood

of future persecution. See

(b)(1).

Although the Immigration and Nationality Act does not

define persecution, see Baba v. Holder,

(2d

Cir. 2009), the BIA has defined it as a “threat to the life

or freedom of, or the infliction of suffering or harm upon,

those who differ in a way regarded as offensive.” Matter of 4 Acosta,

(B.I.A. 1985), overruled in

part on other grounds by INS v. Cardoza-Fonseca,

(1987); accord Ivanishvili v. U.S. Dep’t of Justice,

(2d Cir. 2006). Past persecution can be based on

harm other than threats to life or freedom, including non-

life-threatening violence and physical abuse, see Beskovic v.

Gonzales,

, 226 n.3 (2d Cir. 2006), but the harm

must be sufficiently severe to rise above “mere harassment,”

Ivanishvili v. U.S. Dep’t of Justice,

. The

difference between harassment and persecution is “necessarily

one of degree that must be decided on a case-by-case basis.”

Unfulfilled threats alone do not constitute persecution.

See Ci Pan v. U.S. Att’y General,

(2d

Cir. 2006).

First, the agency did not err in concluding that Martin

failed to establish past persecution. See Ivanishvili v.

U.S. Dep’t of Justice,

. Given that

Martin’s testimony lacked any details regarding the beating

he asserted in his application, he did not testify that he

suffered any injuries or sought medical treatment, and any

threats he received were ultimately unfulfilled, the agency

did not err in concluding that Martin failed to establish

that his past harm rose to the level of persecution. See 5 id.; Jian Qiu Liu v. Holder,

(2d Cir. 2011)

(finding no error in the agency’s determination that an alien

failed to establish past persecution when “he suffered only

minor bruising from an altercation with family planning

officials, which required no formal medical attention and had

no lasting physical effect”).

Second, Martin fails to challenge the agency’s

determination that he did not independently demonstrate a

likelihood of future persecution. This claim is therefore

waived. See Norton v. Sam’s Club,

(2d Cir.

1998) (“Issues not sufficiently argued in the briefs are

considered waived and normally will not be addressed on

appeal.”).

Third, Martin also fails to challenge the BIA’s

determination that he did not establish a nexus between his

proposed social group—individuals who are persecuted by a

group the government of Colombia could not control—and the

harm he suffered and feared. He has therefore waived review

of this determination, which is entirely dispositive of his

withholding claim. See id.; Paloka v. Holder,

(2d Cir. 2014) (“To succeed on a particular social group

claim, the applicant must establish both that the group itself

was cognizable, and that the alleged persecutors targeted the 6 applicant ‘on account of’ her membership in that group.”

(emphasis added) (citations omitted)).

Accordingly, because Martin did not show that he was

persecuted or would be persecuted, or that any harm would be

on account of his social group membership, the agency did not

err in denying withholding of removal. See Ivanishvili v.

U.S. Dep’t of Justice,

; Paloka v. Holder,

.

For the foregoing reasons, the petition for review is

DISMISSED in part for lack of jurisdiction as to asylum and

DENIED in remaining part.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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