Traore v. Sessions

16-3316 Traore v. Sessions BIA Montante, IJ A093 431 698 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 18th day of December, two thousand 5 seventeen. [6] 7 PRESENT: 8 ROBERT A. KATZMANN, 9 Chief Judge, 10 ROBERT D. SACK, 11 RICHARD C. WESLEY, 12 Circuit Judges. 13 _____________________________________ [14] 15 BOUBACAR EL HADJI TRAORE, AKA 16 BABACAR TRAORE, 17 Petitioner, [18] 19 v. 16-3316 20 NAC 21 JEFFERSON B. SESSIONS, III, 22 UNITED STATES ATTORNEY GENERAL, 23 Respondent. 24 _____________________________________ [25] 26 FOR PETITIONER: Anne E. Doebler, Buffalo, NY. [27] 28 FOR RESPONDENT: Chad A. Readler, Acting Assistant 29 Attorney General; M. Jocelyn Lopez 30 Wright, Senior Litigation Counsel; 31 Melissa K. Lott, Trial Attorney, 32 Office of Immigration Litigation, 33 United States Department of 1 Justice, Washington, DC. 2 UPON DUE CONSIDERATION of this petition for review of a 3 Board of Immigration Appeals (“BIA”) decision, it is hereby 4 ORDERED, ADJUDGED, AND DECREED that the petition for review 5 is DISMISSED in part and in part DENIED. 6 Petitioner Boubacar El Hadji Traore, a native and citizen 7 of Senegal, seeks review of an August 31, 2016, decision of 8 the BIA affirming a May 6, 2015, decision of an Immigration 9 Judge (“IJ”) denying Traore’s application for asylum, 10 withholding of removal, and relief under the Convention 11 Against Torture (“CAT”). In re Boubacar El Hadji Traore, No. 12 A 093 431 698 (B.I.A. Aug. 31, 2016), aff’g No. A 093 431 698 13 (Immig. Ct. Buffalo May 6, 2015). We assume the parties’ 14 familiarity with the underlying facts and procedural history 15 in this case. 16 We have reviewed both the BIA’s and IJ’s decisions “for 17 the sake of completeness.” Wangchuck v. Dep’t of Homeland 18 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The standards of 19 review are well established. See 8 U.S.C. § 1252 (b)(4)(B); 20 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 21 I. Time Bar Ruling 22 An asylum applicant must demonstrate “by clear and 23 convincing evidence that the application has been filed 24 within 1 year after the date of the alien’s arrival in the [2] 1 United States,” or must demonstrate “either the existence 2 of changed circumstances which materially affect the 3 applicant’s eligibility or extraordinary circumstances 4 relating to the delay in filing an application.” 8 U.S.C. 5 § 1158(a)(2)(B), (D). Our jurisdiction to review the 6 agency’s finding that an application is untimely, and that 7 neither changed nor extraordinary circumstances excuse the 8 untimeliness, is limited to “constitutional claims or 9 questions of law.” Id. §§ 1158(a)(3), 1252(a)(2)(D). No 10 such question is implicated here because the IJ considered 11 Traore’s explanation that he believed he was listed on his 12 wife’s application, but found that it was not an 13 extraordinary circumstance sufficient to explain a ten-year 14 delay. We dismiss the petition as to asylum because Traore 15 merely challenges the IJ’s factual determinations, which we 16 lack jurisdiction to review. See Joaquin-Porras v. 17 Gonzales, 435 F.3d 172, 178-80 (2d Cir. 2006). 18 II. Merits 19 The BIA did not err in denying withholding of removal. 20 Traore claimed that members of the Movement of Democratic 21 Forces of Casamance (“MDFC”) threatened to kill him if he 22 did not act as an informant, on account of his affiliation 23 with the Socialist Party. To qualify for withholding of [3] 1 removal, an applicant must establish that his “life or 2 freedom would be threatened” in the country of removal on 3 one of five statutory grounds: “race, religion, 4 nationality, membership in a particular social group, or 5 political opinion.” 8 U.S.C. § 1231 (b)(3)(A); see 8 C.F.R. 6 § 1208.16(b); Ramsameachire v. Ashcroft, 357 F.3d 169 , 178 7 (2d Cir. 2004). Past persecution carries a presumption of 8 future persecution. Ivanishvili v. U.S. Dep't of Justice, [9] 433 F.3d 332, 339 (2d Cir. 2006). Otherwise, it is the 10 applicant’s burden to show “that it is more likely than 11 not” that he “would be persecuted.” 8 C.F.R. 12 § 1208.16(b)(2); see Melgar de Torres v. Reno, 191 F.3d 13 307, 311 (2d Cir. 1999). The applicant’s fear must be 14 objectively reasonable. Ramsameachire, 357 F.3d at 178 . 15 The BIA did not err in finding that Traore failed to 16 establish his eligibility for asylum and withholding of 17 removal insofar as those claims were based on the threatening 18 actions of MDFC members. As the BIA concluded, the members’ 19 single threat to harm Traore if he did not agree to serve as 20 their government informant did not constitute past 21 persecution. See Gui Ci Pan v. U.S. Att’y General, 449 F.3d 22 408, 412-13 (2d Cir. 2006) (recognizing that unfulfilled 23 threats alone do not constitute persecution); Edimo-Doualla [4] 1 v. Gonzales, 464 F.3d 276, 283 (2d Cir. 2006) (finding that 2 applicant must show more than harassment); Guan Shan Liao v. 3 U.S. Dep’t of Justice, 293 F.3d 61 , 70 (2d Cir. 2002) (stating 4 that a “threat of detention . . . itself . . . is not past 5 persecution”). 6 The BIA did not err in finding that Traore failed to 7 establish a well-founded fear of future persecution because 8 he did not prove that his fear was objectively reasonable. [9] 8 C.F.R. § 1208.13 (b)(2)(i); Ramsameachire, 357 F.3d at 10 178. He conceded that he had no proof that MDFC members 11 would recognize him if he returned to Senegal. After 12 coming to the United States in 2000, Traore returned to 13 Senegal for months at a time without incident. See Kone v. 14 Holder, 596 F.3d 141, 150-51 (2d Cir. 2010). And Traore’s 15 family members, including his mother, who was also 16 affiliated with the Socialist Party, remained unharmed in 17 Senegal. See Melgar de Torres, 191 F.3d at 313 (noting 18 that the absence of harm to similarly situated family 19 members in the country weighs against finding a well- 20 founded fear of persecution). 21 Because Traore’s claims were all based on the same 22 factual predicate, his failure to establish an objective fear 23 of harm is dispositive of withholding of removal and CAT [5] 1 relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2 2006). 3 For the foregoing reasons, the petition for review is 4 DISMISSED for lack of jurisdiction with respect to asylum, 5 and DENIED in remaining part with respect to withholding of 6 removal and CAT relief. As we have completed our review, any 7 stay of removal that the Court previously granted in this 8 petition is VACATED, and any pending motion for a stay of 9 removal in this petition is DISMISSED as moot. Any pending 10 request for oral argument in this petition is DENIED in 11 accordance with Federal Rule of Appellate Procedure 34(a)(2), 12 and Second Circuit Local Rule 34.1(b). 13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk