Lkhamjav v. Barr ( 2020 )

18-2434
Lkhamjav v. Barr
BIA
Ruehle, IJ
A205 152 815
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 28th day of April, two thousand twenty.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 WILLIAM J. NARDINI,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 GANBAATAR LKHAMJAV, AKA LKHAMJAV
14 GANBAATAR, AKA GARBAATAR
15 LKHANJAV,
16 Petitioner,
17
18 v. 18-2434
19 NAC
20 WILLIAM P. BARR, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Frederick P. Korkosz, Albany, NY.
26
27 FOR RESPONDENT: Joseph H. Hunt, Assistant
28 Attorney General; Cindy S.
29 Ferrier, Assistant Director;
30 Genevieve M. Kelly, Attorney,
31 Office of Immigration Litigation,
32 United States Department of
33 Justice, Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED in part and DENIED in part.
5 Petitioner Ganbaatar Lkhamjav, a native and citizen of
6 Mongolia, seeks review of an August 9, 2018, decision of the
7 BIA affirming a July 20, 2017, decision of an Immigration
8 Judge (“IJ”) denying his application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Ganbaatar Lkhamjav, No. A 205 152 815 (B.I.A.
11 Aug. 9, 2018), aff’g No. A205 152 815 (Immig. Ct. Buffalo
12 July 20, 2017). We assume the parties’ familiarity with the
13 underlying facts and procedural history.
14 We have reviewed both the IJ’s and the BIA’s opinions
15 “for the sake of completeness.” Wangchuck v. Dep’t of
16 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
17 applicable standards of review are well established. See
18 8 U.S.C. § 1252(b)(4)(B); Y.C. v. Holder, 741 F.3d 324, 332
19 (2d Cir. 2013).
20 The agency concluded that Lkhamjav is statutorily
21 ineligible for asylum because his application was untimely
22 filed. See 8 U.S.C. § 1158 (a)(2)(B). The agency considered
2
1 Lkhamjav’s argument that changed country conditions—
2 specifically that those who allegedly targeted him in
3 Mongolia had become more powerful—excused his delay in filing
4 his application. See 8 U.S.C. § 1158(a)(2)(D). But the
5 agency determined that Lkhamjav failed to demonstrate
6 extraordinary or changed circumstances that would excuse the
7 untimely filing of his application. This is a factual
8 determination that we lack jurisdiction to review. 8 U.S.C.
9 § 1158(a)(3); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
10 315, 329 (2d Cir. 2006) (“[W]e remain deprived of jurisdiction
11 to review decisions under the INA when the petition for review
12 essentially disputes the correctness of an IJ’s fact-finding
13 or the wisdom of his exercise of discretion and raises neither
14 a constitutional claim nor a question of law.”). Because the
15 untimely filing of his application resolves his asylum claim,
16 we dismiss Lkhamjav’s petition for review of his asylum claim
17 for lack of jurisdiction.
18 The agency did not err in concluding that Lkhamjav failed
19 to satisfy his burden of proof for withholding of removal
20 based on his claim that he was detained and threatened in
21 Mongolia on account of his membership in the particular social
22 group of “persons who have run afoul of persons in power.”
3
1 In order to establish eligibility for withholding of
2 removal, an applicant must establish “that race, religion,
3 nationality, membership in a particular social group, or
4 political opinion was or will be ‘at least one central
5 reason’” for persecuting the applicant. Matter of C-T-L-,
6 25 I. & N. Dec. 341, 348 (BIA 2010); 8 U.S.C. § 1231(b)(3)(A).
7 “An applicant for . . . withholding of removal seeking relief
8 based on ‘membership in a particular social group’ must
9 establish that the group is (1) composed of members who share
10 a common immutable characteristic, (2) defined with
11 particularity, and (3) socially distinct within the society
12 in question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 227
13 (BIA 2014).
14 To satisfy the particularity requirement, a social group
15 “must be defined by characteristics that provide a clear
16 benchmark for determining who falls within the group.” Id.17 at 239. As the agency concluded, Lkhamjav’s proposed social
18 group did not satisfy the particularity requirement because
19 its boundaries were overbroad and narrowed only by the
20 subjectively defined terms “run afoul of” and “persons in
21 power.” See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir.
22 2007) (“If ‘wealth’ defined the boundaries of a particular
4
1 social group, a determination about whether any petitioner
2 fit into the group (or might be perceived as a member of the
3 group) would necessitate a sociological analysis as to how
4 persons with various assets would have been viewed by others
5 in their country.”); see also Matter of S-E-G-, 24 I. & N.
6 Dec. 579, 585 (BIA 2008) (finding too amorphous the proposed
7 group of “male children who lack stable families and
8 meaningful adult protection[] [and] who are from middle and
9 low income classes . . . because people’s ideas of what those
10 terms mean can vary” (internal quotation marks omitted)).
11 Because the boundaries of Lkhamjav’s proposed social
12 group cannot be objectively drawn, the group is not
13 cognizable. See Hernandez-Chacon v. Barr, 948 F.3d 94, 101;
14 see also Matter of M-E-V-G-, 26 I. & N. Dec. at 237.
15 Furthermore, Lkhamjav, who testified that he was and would be
16 targeted for collecting loans and seizing property on behalf
17 of a bank, did not assert that he was or would be targeted on
18 account of any of the other protected grounds, such as race,
19 religion, nationality, or political opinion. See 8 U.S.C.
20 § 1231(b)(3)(A). Because Lkhamjav failed to establish a
21 nexus between past and prospective harm and a protected
22 ground, he failed to satisfy his burden of proof for
5
1 withholding of removal. See 8 U.S.C. § 1231(b)(3)(A).
2 Accordingly, we do not consider the agency’s alternative
3 dispositive bases for denying that relief. See INS v.
4 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
5 and agencies are not required to make findings on issues the
6 decision of which is unnecessary to the results they reach.”).
7 We also do not reach the agency’s denial of CAT relief because
8 Lkhamjav does not challenge that ruling in his brief. See
9 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d
10 Cir. 2005) (finding abandoned issues and claims not raised in
11 opening brief).
12 For the foregoing reasons, the petition for review is
13 DISMISSED in part and DENIED in part. All pending motions
14 and applications are DENIED and stays VACATED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
6