18

- 1439 Velasquez Ramirez v. Barr BIA A 095 968 898 

### 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.**
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the**  **Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **n d**  **d a**  **y of D**  **e c**  **e m**  **b e**  **r ,**  **two thousand twenty**  **.** 4 5 **PRESENT:** 6 **DEBRA ANN LIVINGSTON ,**  7 **Chief Judge ,**  8 **REENA RAGGI ,**  9 **JOSEPH F. BIANCO ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **PEDRO VELASQUEZ RAMIREZ,** 14 **Petitioner ,**  15 16

**v. 18** 

**- 1439**  17 **NAC** 18 **WILLIAM P. BARR, UNITED STATES**  19 **ATTORNEY GENERAL ,**  20 **Respondent .**  21

**_____________________________________** 22 23 **FOR PETITIONER :**  Jose Perez, Esq

. , Syracuse , NY

. 24 25 **FOR RESPONDENT:** Joseph H. Hunt , Assistant Attorney 26 General ; Leslie McKay , Senior 27 Litigation Counsel ; Terri J. 28 Scadron , Assistant Director , 292 Office of Immigration Litigation, 1 United States Department of 2 Justice, Washington, D C. 3
UPON DUE CONSIDERATION of this petition for review of a 4
Board of Immigration Appeals (“BIA”) decision, it is hereby 5
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 6

is DENIED

. 7

Petitioner Pedro Velasquez Ramirez , a native and citizen 8

of Guatemala , seeks review of an April 10, 2018 , decision of 9

the BIA denying his motion for reconsideration

. In re 10
Velasquez Ramirez , N o. A 095 968 898 (B.I.A. Apr. 10, 2018 )

. 11

We assume the parties’ familiarity with the underlying facts 12
and procedural history in this case. 13

We review the BIA’s denial of a motion to reconsider for 14

abuse of discretion. Jin Ming Liu v. Gonzales , 439 F.3d 109, 15

111 (2d Cir. 2006). “ An abuse of discretion may be found 16
where the BIA’s decision provides no rational explanation, 17
inexplicably departs from established policies, is devoid of 18
any reasoning, or contains only summary or conclusory 19
statements; that is to say, where the Board ha s acted in an 20
arbitrary or capricious manner.” Id. (internal quotation 21

marks omitted). 22
Velasquez Ramirez’s argument that the BIA erred in 233 deciding his appeal without properly serving a briefing 1
notice and considering the arguments he later raised in hi s 2

late

- filed brief is without merit. The agency reasonably 3

concluded that the record showed the briefing notice was 4
properly mailed to counsel’s address of record in May 2017. 5
Where, as here, an alien had notice of the proceedings, the 6
agency does not abuse its discretion in denying a motion 7
predicated on nonreceipt of a subsequent notice if the agency 8
properly served it, regardless of the whether the alien 9
actually received it. Cf. Ping Chen v. U.S. Att’y Gen. , 502 10

F.3d 73, 76

– 77 (2d Cir. 2007) (agency did not abuse its 11
discretion in denying a motion to reopen and reissue an order 12
that the petitioner did not timely appeal because, “[o]nce 13
the BIA has performed its duty of servi ng the order, the time 14
for appeal and motions to reopen begins to run, even if the 15

order miscarries in the mail or the alien does not receive it 16

for some other reason that is not the BIA’s fault”). Counsel 17
asserts that he did not receive the scheduling no tice, and 18
that he attempted to learn the deadline by leaving two phone 19
messages with the BIA ’s clerk’s office after the notice 20
issued. This may be evidence that the scheduling notice was 214 not properly mailed, but it is circumstantial, and the agency 1

“may r easonably accord less weight to [evidence] of non

2
receipt than to its own records establishing that the [notice] 3

was in fact mailed.” Ping Chen , 502 F.3d at 77. 4
Because Velasquez Ramirez only timely petitioned for 5
review of the BIA’s April 2018 decision denying 6

reconsideration, our review is limited to that decision, and 7

we generally may not consider the agency’s underlying 8
decisions denying a continuance and deny ing Velasquez 9
Ramirez’s application for asylum, withholding of removal, and 10
protection under the Convention Against Torture (“CAT”)

. See 11
Ke Zhen Zhao v. U.S. Dep’t of Justice , 265 F.3d 83, 89

– 90 (2d 12

Cir. 2001) ( holding that “ we are precluded from passing on 13
the merits of the underlying

. . . proceedings” when reviewing 14

the denial of reconsideration ). To the extent that in 15
denying reconsideration, the BIA restated that there was no 16
error in the IJ’s rulings, we find no abuse of discr etion 17
because Velasquez Ramirez’s challenges to the IJ’s rulings 18

lack merit. 19

The IJ has substantial discretion in granting and denying 20

continuances , and Velasquez Ramirez ’s counsel did not 215 establish that she could not have prepared for the merits 1

hearin g. See 8 C.F.R. § 1003.29 ; Matter of Sibrun , 18 I. & 2
N. Dec. 354, 356 (BIA 1983) (holding that a motion for a 3
continuance based on lack of preparation must be supported by 4
“a reasonable showing that the lack of preparation occurred 5
despite a good faith effort to be ready to proceed”) . As to 6
asylum, withholding of removal, and CAT relief, Velasquez 7

Ramirez did not show that he had suffered past harm rising to 8
the level of persecution or demonstrate an objectively 9

reasonable fear of future har m base d on a single encounter 10
with a man who asked him to transport drugs. Even construing 11

hi s testimony to assert that he had been threatened, a single 12
unfulfilled threat does not constitute past persecution , s ee 13
Gui Ci Pan v. U.S. Att’y General , 449 F.3d 408, 412

– 13 (2d 14

Cir. 2006) , and his fear of future harm was speculative 15
because he testified that he did not tell his putative abuser 16
anything about his identity or where he lived, there was no 17
evidence of any further attempts to contact him or his family 18

afte r this encounter, and he did not know of anyone else in 19
his town who had been hurt by drug traffickers , see Jian Xing 20

Huang v. U.S. INS , 421 F.3d 125, 129 (2d Cir. 2005) (“In the 216 absence of solid support in the record . . . [an applicant’s] 1
fear is specula tive at best.”). Because all of his claims 2
rested on the same factual predicate and he failed to meet 3
the burden for asylum, he “necessarily” failed to meet the 4
more demanding burden for withholding of removal and CAT 5

relief. Lecaj v. Holder , 616 F.3d 11 1, 119 (2d Cir. 2010). 6
For the foregoing reasons, the petition for review is 7

DENIED

. All pending motions and applications are DENIED and 8

stays VACATED. 9

FOR THE COURT: 10 Catherine O ’ Hagan Wolfe , 11 Clerk of Court 12