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 

New York, on the 2nd 4 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, 
2

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 
3

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 
4

1 not properly mailed, but it is circumstantial, and the agency 

2 “may reasonably accord less weight to [evidence] of non3 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 
5

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 
6

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