Medel Corona v. Barr

17-3351 Medel Corona v. Barr BIA Loprest, IJ A088 442 425 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 15th day of July, two thousand nineteen. [5] 6 PRESENT: 7 DENNIS JACOBS, 8 PETER W. HALL, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ [12] 13 IVAN MEDEL CORONA, 14 Petitioner, [15] 16 v. 17-3351 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Charles Christophe, New York, NY. [24] 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Terri J. 27 Scadron, Assistant Director; 28 Manuel A. Palau, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 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 Ivan Medel Corona, a native and citizen of 6 Mexico, seeks review of a September 20, 2017 decision of the 7 BIA affirming an August 22, 2016 decision of an Immigration 8 Judge (“IJ”) denying asylum, withholding of removal, and 9 relief under the Convention Against Torture (“CAT”). In re 10 Ivan Medel Corona, No. A088 442 425 (B.I.A. Sept. 20, 2017), 11 aff’g No. A088 442 425 (Immig. Ct. N.Y. City Aug. 22, 2016). 12 We assume the parties’ familiarity with the underlying facts 13 and procedural history in this case. 14 Under the circumstances of this case, we have considered 15 both the IJ’s and the BIA’s decisions “for the sake of 16 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 17 524, 528 (2d Cir. 2006). The applicable standards of review 18 are well established. See 8 U.S.C. § 1252 (b)(4)(B); Yanqin 19 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 20 Asylum: One-Year Filing Deadline 21 An alien is ineligible for asylum “unless the alien 22 demonstrates by clear and convincing evidence that the 23 application has been filed within 1 year after the date of [2] 1 the alien’s arrival in the United States.” 8 U.S.C. 2 § 1158(a)(2)(B). An application may be considered outside 3 the one-year deadline, however, “if the alien 4 demonstrates . . . the existence of changed circumstances 5 which materially affect the applicant’s eligibility for 6 asylum or extraordinary circumstances relating to the delay,” 7 id. § 1158(a)(2)(D), and the application is filed within a 8 reasonable time, 8 C.F.R. § 1208.4 (a)(4)(ii), (a)(5). Our 9 jurisdiction to review the agency’s findings regarding the 10 timeliness of an asylum application and the circumstances 11 excusing the untimeliness is limited to “constitutional 12 claims or questions of law.” See 8 U.S.C. §§ 1158 (a)(3), 13 1252(a)(2)(D). 14 Medel Corona does not raise a colorable constitutional 15 claim or question of law regarding the agency’s pretermission 16 of asylum. He concedes that his application was untimely, 17 as he entered the United States in 2003 and did not file for 18 asylum until 2011. He argues that his parents’ arrests in 19 2007 constituted a change in circumstances and that he filed 20 for asylum within a reasonable time after the arrests. What 21 is a reasonable time after a change in circumstances is a 22 fact-specific inquiry. See Matter of T-M-H- & S-W-C-, 25 I. 23 & N. Dec. 193, 193 (B.I.A. 2010) (“Although there may be some [3] 1 rare cases in which a delay of one year or more may be 2 justified because of particular circumstances, in most cases 3 such a delay would not be justified.”). The agency found 4 that, assuming the arrests were a changed circumstance, Medel 5 Corona’s three-year delay after the arrests was not 6 reasonable. The agency rejected Medel Corona’s explanation 7 that he “had other legal issues that . . . took precedence.” 8 Certified Administrative Record (“CAR”) at 15. His challenge 9 to the agency’s determination that this was not a reasonable 10 delay “merely quarrels over the correctness of the factual 11 findings” relating to his specific circumstances and does not 12 raise a question of law. Xiao Ji Chen v. U.S. Dep’t of 13 Justice, 471 F.3d 315, 329 (2d Cir. 2006). Accordingly, we 14 lack jurisdiction to further review the denial of asylum as 15 untimely. See 8 U.S.C. § 1158 (a)(3). 16 Withholding of Removal 17 For withholding of removal, “the applicant must establish 18 that race, religion, nationality, membership in a particular 19 social group, or political opinion was or will be at least 20 one central reason for persecuting the applicant.” 8 U.S.C. 21 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also Matter of C-T- 22 L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010) (applying “one 23 central reason” standard to withholding). Medel Corona [4] 1 claims withholding of removal based on imputed political 2 opinion and his membership in the “quasi social group” of the 3 “biological son of a man whose wife is an influential member 4 of [the Partido Revolucionario Institucional (“PRI”)].” 5 Petitioner’s Br. at 12, 14. We find no error in the agency’s 6 denial of withholding of removal. 7 To demonstrate that past persecution or a fear of 8 persecution is on account of political opinion, the applicant 9 must “show, through direct or circumstantial evidence, that 10 the persecutor’s motive to persecute arises from the 11 applicant’s political belief,” rather than merely by the 12 persecutor’s own opinion. Yueqing Zhang v. Gonzales, 426 13 F.3d 540, 545 (2d Cir. 2005) (emphasis added). The 14 persecution may be on account of an opinion imputed to the 15 applicant by the persecutor, regardless of whether or not 16 this imputation is accurate. See Chun Gao v. Gonzales, 424 17 F.3d 122, 129 (2d Cir. 2005). 18 The agency reasonably concluded that Medel Corona did 19 not demonstrate that the men who harassed and beat him at the 20 direction of his biological father’s wife did so on account 21 of his actual or imputed anti-PRI political opinion. The 22 record supports the agency’s conclusion that Medel Corona’s 23 biological father’s wife, though she was politically [5] 1 connected, harmed Medel Corona for personal reasons. Medel 2 Corona did not testify that he had any political views or 3 that he was opposed to the PRI. The men who harassed and 4 attacked Medel Corona never mentioned the PRI or politics; 5 they only disparaged his family and told him to stay away 6 from his biological father. Without any direct or 7 circumstantial evidence that the men targeted him or would 8 target him on account of his political opinion, imputed or 9 otherwise, the BIA did not err in finding that he failed to 10 establish his eligibility for withholding on that ground. 11 See Yueqing Zhang, 426 F.3d at 545. 12 To the extent Medel Corona’s social group claim is 13 distinct from his imputed political opinion claim, he did not 14 argue his social group claim before the IJ. Accordingly, the 15 BIA properly deemed it waived on appeal and did not consider 16 it. See Prabhudial v. Holder, 780 F.3d 553, 555 (2d Cir. 17 2015) (per curiam) (“[T]he BIA may refuse to consider an issue 18 that could have been, but was not, raised before an IJ.”). 19 CAT Protection 20 To receive protection under the CAT, an applicant must 21 “establish that it is more likely than not that he . . . would 22 be tortured if removed to the proposed country of removal.” [23] 8 C.F.R. § 1208.16 (c)(2). CAT relief does not require a [6] 1 nexus to a protected ground. See id. “Torture is defined 2 as any act by which severe pain or suffering, whether physical 3 or mental, is intentionally inflicted on a person . . . at 4 the instigation of or with the consent or acquiescence of a 5 public official or other person acting in an official 6 capacity.” 8 C.F.R. § 1208.18 (a)(1); see Khouzam v. 7 Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). 8 Medel Corona argues that because he was beaten at the 9 instigation of “his biological father’s wife who is an 10 influential [PRI] member,” it logically follows that he will 11 be tortured “with the acquiescence of the current Mexican 12 government.” Petitioner’s Br. at 16–17. This claim is more 13 speculative than logical, as it is undermined by Medel 14 Corona’s testimony that when he reported his first attack to 15 the police, they were responsive and said they would look for 16 his assailants. See Jian Xing Huang v. U.S. INS, 421 F.3d 17 125, 129 (2d Cir. 2005) (per curiam) (holding that “[i]n the 18 absence of solid support in the record” for a claim of future 19 persecution, an applicant’s “fear is speculative at best”). 20 Though the police were unsuccessful in preventing a second 21 attack, the failure did not appear to be the result of 22 acquiescence, and Medel Corona conceded that he never 23 followed up with the police about their efforts to find his [7] 1 attackers. Cf. Khouzam, 361 F.3d at 171 (“[T]orture requires 2 only that government officials know of or remain willfully 3 blind to an act and thereafter breach their legal 4 responsibility to prevent it.”). The generalized evidence 5 of government and police corruption and the PRI’s power in 6 Mexico, without more, did not establish that Medel Corona 7 will more likely than not be tortured with the consent or 8 acquiescence of the Mexican government. See Mu-Xing Wang v. 9 Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (“[W]hile Wang’s 10 testimony as well as some of his ‘country conditions’ 11 documents indicate that some prisoners in China have been 12 tortured, Wang has in no way established that someone in his 13 particular alleged circumstances is more likely than not to 14 be tortured if imprisoned in China.” (citation omitted)); see 15 also Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156 , 160 16 (2d Cir. 2005) (requiring “particularized evidence” beyond 17 general country conditions to support a CAT claim). Absent 18 particularized evidence that the authorities would acquiesce 19 to Medel Corona’s torture, the agency did not err in denying 20 CAT relief. See Savchuck v. Mukasey, 518 F.3d 119, 123 (2d 21 Cir. 2008) (per curiam) (“[A]n alien will never be able to 22 show that he faces a more likely than not chance of torture 23 if one link in the chain cannot be shown to be more likely [8] 1 than not to occur.” (quoting In re J-F-F-, 23 I. & N. Dec. 2 912, 918 n.4 (AG 2006))). 3 For the foregoing reasons, the petition for review is 4 DISMISSED in part as to asylum and DENIED in remaining part 5 as to withholding of removal and CAT relief. As we have 6 completed our review, Medel Corona’s pending motion for a 7 stay of removal in this petition is DISMISSED as moot. 8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, 10 Clerk of Court