Cruz-Hernandez v. Garland ( 2022 )

20-358
Cruz-Hernandez v. Garland
BIA
A206 079 093
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 2nd day of December, two thousand twenty-
two.
PRESENT:
RICHARD C. WESLEY,
JOSEPH F. BIANCO,
ALISON J. NATHAN,
Circuit Judges.
_____________________________________
RONALD CRUZ-HERNANDEZ, AKA OMAR
OTTONIEL ASENCIO-GONZALEZ,
Petitioner,
v. 20-358
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Robert F. Graziano, Esq.,
Buffalo, NY.
FOR RESPONDENT: Jeffrey Bossert Clark, Acting
Assistant Attorney General;
Shelley R. Goad, Assistant
Director; Kristin Moresi, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
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 DENIED.
Petitioner Ronald Cruz-Hernandez, a native and citizen
of Guatemala, seeks review of a December 27, 2019 decision of
the BIA denying his motion to reopen his removal proceedings.
In re Ronald Cruz-Hernandez, No. A206 079 093 (B.I.A. Dec.
27, 2019). We assume the parties’ familiarity with the
underlying facts and procedural history.
Our review is limited to the BIA’s denial of reopening
because Cruz-Hernandez timely petitioned for review of only
that decision. See Ke Zhen Zhao v. U.S. Dep’t of Justice,
265 F.3d 83, 89–90 (2d Cir. 2001). We review the denial of
a motion to reopen for abuse of discretion. Ali v. Gonzales,
448 F.3d 515, 517 (2d Cir. 2006). “An abuse of discretion
may be found . . . where the Board’s decision provides no
rational explanation, inexplicably departs from established
policies, is devoid of any reasoning, or contains only summary
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or conclusory statements; that is to say, where the Board has
acted in an arbitrary or capricious manner.” Ke Zhen Zhao,
265 F.3d at 93 (internal citations omitted). The BIA did not
abuse its discretion in denying the motion to reopen because
Cruz-Hernandez did not establish prima facie eligibility for
any relief. See INS v. Abudu, 485 U.S. 94, 104 (1988) (noting
that failure to establish prima facie eligibility is an
“independent ground[] on which the BIA may deny a motion to
reopen”).
An asylum applicant must show that he suffered past
persecution, or has a well-founded fear of persecution and
that “race, religion, nationality, membership in a particular
social group, or political opinion was or will be at least
one central reason for persecuting the applicant.” 8 U.S.C.
§ 1158(b)(1)(B)(i). “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 applicant ‘on account of’ her membership in that
group.” Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014)
(citing 8 U.S.C. § 1101(a)(42)); see Castro v. Holder, 597
F.3d 93, 100 (2d Cir. 2010) (explaining that “the burden [is]
on the . . . applicant to establish a sufficiently strong
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nexus” between a statutorily protected ground and
persecution). It is well established that “general crime
conditions” and “act[s] of random violence” are not grounds
for asylum. See Melgar de Torres v. Reno, 191 F.3d 307, 313–
14 (2d Cir. 1999); see also Ucelo-Gomez v. Mukasey, 509 F.3d
70, 73 (2d Cir. 2007) (“When the harm visited upon members of
a group is attributable to the incentives presented to
ordinary criminals rather than to persecution, the scales are
tipped away from considering those people a ‘particular
social group’ . . . .”).
In his motion to reopen, Cruz-Hernandez proposed his
family as a particular social group, arguing that the murder
of his sister Glenda in 2005 and the more recent rape of his
other sister Ana in 2019 makes it “clear that now [all] . .
. members of the . . . family are targets of extreme
violence.” Pet. Br. at 9. The BIA did not abuse its
discretion in holding that Cruz-Hernandez’s new evidence of
the 2019 rape failed to demonstrate that he would be targeted
by his sisters’ assailants. 1 He presented no evidence to
1 Given this conclusion, we express no opinion regarding whether
a family is cognizable as “a particular social group” as defined
in 8 U.S.C. § 1158(b)(1)(B)(i) and other immigration statutes.
Cf. Matter of L-E-A-, 28 I. & N. Dec. 304, 304–05 (A.G. 2021).
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support his belief that the 2019 rape was related to the 2005
murder, and his claim was speculative, see, e.g., Pet. Br. at
8 (“[I]f the 2005 murder and 2019 rape[] are connected . . .
.”), particularly given the nearly fifteen years between the
two incidents. Absent evidence of a link, these crimes do
not support his allegation that his family members are being
targeted on account of their family membership. See INS v.
Elias-Zacarias, 502 U.S. 478, 483 (1992) (holding that an
applicant “must provide some evidence of [motive], direct or
circumstantial”).
Moreover, to the extent that Cruz-Hernandez argues he
suffered past persecution in Guatemala because he witnessed
Glenda’s murder at a young age, he did not provide any new
evidence that Glenda’s murder was on account of a protected
ground or that he shared a characteristic that motivated her
murder. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen
proceedings shall not be granted unless it appears to the
Board that evidence sought to be offered is material and was
not available and could not have been discovered or presented
at the former hearing.”); Abudu, 485 U.S. at 104–05
(identifying the failure to offer such evidence as a proper
ground to deny a motion to reopen); see also Tao Jiang v.
5
Gonzales, 500 F.3d 137, 141 (2d Cir. 2007) (“[A]n asylum
applicant cannot claim past persecution based solely on harm
that was inflicted on a family member . . . because an
applicant must rely upon harm the applicant has suffered
individually.” (internal citation omitted)).
Cruz-Hernandez’s failure to show his prima facie
eligibility for asylum is dispositive with respect to an
application for withholding of removal. See 8 U.S.C.
§ 1231(b)(3)(A); Ramsameachire v. Ashcroft, 357 F.3d 169, 178
(2d Cir. 2004) (“Because the withholding of removal analysis
overlaps factually with the asylum analysis, but involves a
higher burden of proof, an alien who fails to establish his
entitlement to asylum necessarily fails to establish his
entitlement to withholding of removal.”).
Finally, the BIA did not abuse its discretion in
concluding that Cruz-Hernandez did not state a prima facie
claim for Convention Against Torture (“CAT”) relief.
Although a CAT claim does not require a nexus to a protected
ground, Cruz-Hernandez did not identify a reason he would be
singled out for torture other than his above-discussed family
membership. Accordingly, he did not present evidence to meet
his burden of showing that “someone in his particular alleged
6
circumstances [was] more likely than not to be tortured.” Mu
Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d
Cir. 2005) (emphasis omitted); see also 8 C.F.R.
§ 1208.16(c)(2).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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