Alvarez v. Holder , 470 F. App'x 51 ( 2012 )

11-2946-ag
Alvarez v. Holder
BIA
Straus, IJ
A088 006 199
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 24th day of May, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RAYMOND J. LOHIER, Jr.,
10 Circuit Judges.
11 _______________________________________
12
13 DIVIER ALVAREZ,
14 Petitioner,
15
16 v. 11-2946-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; Song Park, Senior
28 Litigation Counsel; Timothy G.
29 Hayes, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 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 Divier Alvarez, a native and citizen of Colombia, seeks
10 review of a June 30, 2011, order of the BIA affirming the
11 March 10, 2010, decision of an Immigration Judge (“IJ”)
12 denying his application for asylum, withholding of removal,
13 and relief under the Convention Against Torture (“CAT”). In
14 re Divier Alvarez, No. A088 006 199 (B.I.A. June 30, 2011),
15 aff’g No. A088 006 199 (Immig. Ct. Hartford Mar. 10, 2010).
16 We assume the parties’ familiarity with the underlying facts
17 and procedural history in this case.
18 Under the circumstances of this case, we have reviewed
19 the IJ’s decision as supplemented by the BIA. See Yan Chen
20 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
21 applicable standards of review are well established.
22 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.
23 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
24 Alvarez challenges the agency’s denial of his
25 application for withholding of removal. However, the agency
2
1 reasonably found that the harm Alvarez personally suffered —
2 a warning letter from the Revolutionary Armed Forces of
3 Colombia (“FARC”) over a land dispute and a general threat
4 not to report the kidnaping of his brother — was, when
5 considered in the aggregate, insufficiently severe to
6 constitute persecution. See Ivanishvili v. U.S. Dep’t of
7 Justice, 433 F.3d 332, 341-42 (2d Cir. 2006); Gui Ci Pan v.
8 U.S. Attorney Gen., 449 F.3d 408, 412 (2d Cir. 2006) (per
9 curiam). As the agency reasonably concluded that Alvarez
10 did not suffer past persecution, he is not entitled to a
11 presumption of future persecution. See 8 C.F.R.
12 § 1208.16(b)(1).
13 To the extent Alvarez argues that he established a
14 clear probability of future persecution independent from his
15 claim of past persecution, he has not identified any record
16 evidence or testimony to support this position. See Jian
17 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (a fear
18 is speculative and not objectively reasonable if it lacks
19 “solid support in the record”). As the agency reasonably
20 determined that Alvarez failed to demonstrate that he
21 suffered past persecution or established a clear probability
22 of future persecution, the agency did not err in denying his
3
1 application for withholding of removal. See Ivanishvili,
2 433 F.3d at 341; Gui Ci Pan v. U.S. Attorney Gen., 449 F.3d
3 at 412.
4 Alvarez also argues that the IJ did not enter an
5 explicit credibility finding in his decision. While Alvarez
6 is correct, the IJ’s oversight was harmless because his
7 decision implicitly credited Alvarez’s testimony and denied
8 Alvarez’s claim on the merits. See, e.g., Ajdin v. Bureau
9 of Citizenship and Immigration Services, 437 F.3d 261, 266
10 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
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