Velasquez Ramirez v. Barr

18-1439 Velasquez Ramirez v. Barr BIA A095 968 898 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 2nd day of December, two thousand twenty. [5] 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 REENA RAGGI, 10 JOSEPH F. BIANCO, 11 Circuit Judges. 12 _____________________________________ [13] 14 PEDRO VELASQUEZ RAMIREZ, 15 Petitioner, [16] 17 v. 18-1439 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ [23] 24 FOR PETITIONER: Jose Perez, Esq., Syracuse, NY. [25] 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Leslie McKay, Senior 28 Litigation Counsel; Terri J. 29 Scadron, Assistant Director, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Pedro Velasquez Ramirez, a native and citizen 9 of Guatemala, seeks review of an April 10, 2018, decision of 10 the BIA denying his motion for reconsideration. In re 11 Velasquez Ramirez, No. A 095 968 898 (B.I.A. Apr. 10, 2018). 12 We assume the parties’ familiarity with the underlying facts 13 and procedural history in this case. 14 We review the BIA’s denial of a motion to reconsider for 15 abuse of discretion. Jin Ming Liu v. Gonzales, 439 F.3d 109 , 16 111 (2d Cir. 2006). “An abuse of discretion may be found 17 where the BIA’s decision provides no rational explanation, 18 inexplicably departs from established policies, is devoid of 19 any reasoning, or contains only summary or conclusory 20 statements; that is to say, where the Board has acted in an 21 arbitrary or capricious manner.” Id. (internal quotation 22 marks omitted). 23 Velasquez Ramirez’s argument that the BIA erred in [2] 1 deciding his appeal without properly serving a briefing 2 notice and considering the arguments he later raised in his 3 late-filed brief is without merit. The agency reasonably 4 concluded that the record showed the briefing notice was 5 properly mailed to counsel’s address of record in May 2017. 6 Where, as here, an alien had notice of the proceedings, the 7 agency does not abuse its discretion in denying a motion 8 predicated on nonreceipt of a subsequent notice if the agency 9 properly served it, regardless of the whether the alien 10 actually received it. Cf. Ping Chen v. U.S. Att’y Gen., 502 11 F.3d 73 , 76–77 (2d Cir. 2007) (agency did not abuse its 12 discretion in denying a motion to reopen and reissue an order 13 that the petitioner did not timely appeal because, “[o]nce 14 the BIA has performed its duty of serving the order, the time 15 for appeal and motions to reopen begins to run, even if the 16 order miscarries in the mail or the alien does not receive it 17 for some other reason that is not the BIA’s fault”). Counsel 18 asserts that he did not receive the scheduling notice, and 19 that he attempted to learn the deadline by leaving two phone 20 messages with the BIA’s clerk’s office after the notice 21 issued. This may be evidence that the scheduling notice was [3] 1 not properly mailed, but it is circumstantial, and the agency 2 “may reasonably accord less weight to [evidence] of non- 3 receipt than to its own records establishing that the [notice] 4 was in fact mailed.” Ping Chen, 502 F.3d at 77. 5 Because Velasquez Ramirez only timely petitioned for 6 review of the BIA’s April 2018 decision denying 7 reconsideration, our review is limited to that decision, and 8 we generally may not consider the agency’s underlying 9 decisions denying a continuance and denying Velasquez 10 Ramirez’s application for asylum, withholding of removal, and 11 protection under the Convention Against Torture (“CAT”). See 12 Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83 , 89–90 (2d 13 Cir. 2001) (holding that “we are precluded from passing on 14 the merits of the underlying . . . proceedings” when reviewing 15 the denial of reconsideration). To the extent that in 16 denying reconsideration, the BIA restated that there was no 17 error in the IJ’s rulings, we find no abuse of discretion 18 because Velasquez Ramirez’s challenges to the IJ’s rulings 19 lack merit. 20 The IJ has substantial discretion in granting and denying 21 continuances, and Velasquez Ramirez’s counsel did not [4] 1 establish that she could not have prepared for the merits 2 hearing. See 8 C.F.R. § 1003.29 ; Matter of Sibrun, 18 I. & 3 N. Dec. 354, 356 (BIA 1983) (holding that a motion for a 4 continuance based on lack of preparation must be supported by 5 “a reasonable showing that the lack of preparation occurred 6 despite a good faith effort to be ready to proceed”). As to 7 asylum, withholding of removal, and CAT relief, Velasquez 8 Ramirez did not show that he had suffered past harm rising to 9 the level of persecution or demonstrate an objectively 10 reasonable fear of future harm based on a single encounter 11 with a man who asked him to transport drugs. Even construing 12 his testimony to assert that he had been threatened, a single 13 unfulfilled threat does not constitute past persecution, see 14 Gui Ci Pan v. U.S. Att’y General, 449 F.3d 408 , 412–13 (2d 15 Cir. 2006), and his fear of future harm was speculative 16 because he testified that he did not tell his putative abuser 17 anything about his identity or where he lived, there was no 18 evidence of any further attempts to contact him or his family 19 after this encounter, and he did not know of anyone else in 20 his town who had been hurt by drug traffickers, see Jian Xing 21 Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the [5] 1 absence of solid support in the record . . . [an applicant’s] 2 fear is speculative at best.”). Because all of his claims 3 rested on the same factual predicate and he failed to meet 4 the burden for asylum, he “necessarily” failed to meet the 5 more demanding burden for withholding of removal and CAT 6 relief. Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010). 7 For the foregoing reasons, the petition for review is 8 DENIED. All pending motions and applications are DENIED and 9 stays VACATED. 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court