Can v. Holder

13-1291
Can v. Holder
BIA
Vomacka, IJ
A089 082 405
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of April, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 DANILO NIJ CAN, AKA DANILO CAN, AKA
14 DANICO NIJCAN, AKA DANILO NIJ,
15 Petitioner,
16
17 v. 13-1291
18 NAC
19 ERIC H. HOLDER, JR., UNITED
20 STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: James Bouklas, Bouklas Gaylord
26 LLP, Syosset, New York.
27
28 FOR RESPONDENT: Stuart F. Delery, Assistant
29 Attorney General; William C.
1 Peachey, Assistant Director;
2 Rebecca Hoffberg Phillips, Trial
3 Attorney, Office of Immigration
4 Litigation, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DISMISSED as to asylum, and DENIED in all other respects.
10 Petitioner Danilo Nij Can, a native and citizen of
11 Guatemala, seeks review of a March 13, 2013, decision of the
12 BIA affirming an August 12, 2011, decision of an Immigration
13 Judge (“IJ”) denying Can’s application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Nij Can, No. A089 082 405
16 (B.I.A. Mar. 13, 2013), aff’g No. A089 082 405 (Immig. Ct.
17 N.Y. City Aug. 12, 2011). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 Under the circumstances of this case, we have
21 considered “both the IJ’s and the BIA’s opinions ‘for the
22 sake of completeness.’” Zaman v. Mukasey, 514 F.3d 233, 237
23 (2d Cir. 2008) (per curiam) (quoting Wangchuck v. DHS, 448
2
1 F.3d 524, 528 (2d Cir. 2006)). The applicable standards of
2 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
3 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
4 Because Can has not challenged the denial of CAT relief, we
5 address only the agency’s rulings regarding asylum and
6 withholding of removal. See Yueqing Zhang v. Gonzales, 426
7 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
8 I. Pretermission of Asylum
9 An asylum applicant must demonstrate “by clear and
10 convincing evidence that the application has been filed
11 within 1 year after the date of the alien’s arrival in the
12 United States,” unless, in relevant part, the applicant
13 establishes “changed circumstances which materially affect
14 the applicant’s eligibility” for asylum. 8 U.S.C.
15 § 1158(a)(2)(B), (D). Our jurisdiction to review an
16 agency’s determination regarding the timeliness of an asylum
17 application is limited to constitutional claims and
18 questions of law. 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D);
19 see also Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 285 (2d
20 Cir. 2009). Here, we lack jurisdiction to review Can’s
21 challenge to the agency’s pretermission of asylum because he
3
1 disputes only the correctness of the agency’s factual
2 determination that his brother’s murder was not a changed
3 circumstance, whereas his application was based on alleged
4 incidents of persecution that predated the murder. See Xiao
5 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
6 2006).
7 II. Withholding of Removal—Nexus Finding
8 An alien is eligible for withholding of removal if it
9 is more likely than not that his “life or freedom would be
10 threatened in [the country of removal] because of [his]
11 race, religion, nationality, membership in a particular
12 social group, or political opinion.” 8 U.S.C.
13 § 1231(b)(3)(A); see also Castro v. Holder, 597 F.3d 93, 100
14 (2d Cir. 2010). We confine our review to the ground that
15 Can raises in his brief: that he suffered and fears
16 persecution because of his political opinion, defined as
17 neutrality in response to gangs’ threats and extortion. See
18 Yueqing Zhang, 426 F.3d at 541 n.1.
19 The agency reasonably concluded that Can failed to
20 establish a nexus to a protected ground. To establish
21 persecution because of political opinion, Can was required
4
1 to demonstrate that gangs were motivated, at least in part,
2 by their perception of Can’s political opinion. Id. at 545.
3 No evidence shows that the armed individuals threatened him
4 for any reason other than pecuniary gain, let alone because
5 of his political opinion or another protected ground. Cf.
6 INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992). While he
7 testified that tried to resist giving in to the extortion,
8 he did not show that he did so to express a political
9 opinion. Further, he did not testify that he was involved
10 in political activity or perceived to have a political
11 opinion. To the contrary, he testified that he was targeted
12 when he might have money, such as at a bank or restaurant.
13 However, “persecution must be on account of an enumerated
14 ground set forth in the Act, and general crime conditions
15 are not a stated ground.” Melgar de Torres v. Reno, 191
16 F.3d 307, 314 (2d Cir. 1999); see also Ucelo-Gomez v.
17 Mukasey, 509 F.3d 70, 73-74 (2d Cir. 2007) (per curiam)
18 (affirming BIA’s holding that “harm motivated purely by
19 wealth is not persecution”). Accordingly, the agency did
20 not err in finding that he failed to establish a nexus to a
21 protected ground. Elias-Zacarias, 502 U.S. at 481 n.1.
5
1 For the foregoing reasons, the petition for review is
2 DISMISSED as to asylum and DENIED in all other respects. As
3 we have completed our review, any stay of removal that the
4 Court previously granted in this petition is VACATED, and
5 any pending motion for a stay of removal in this petition is
6 DISMISSED as moot. Any pending request for oral argument in
7 this petition is DENIED in accordance with Federal Rule of
8 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
9 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
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