Filed: Apr. 21, 2017
Latest Update: Mar. 03, 2020
Summary: 15-2978 Molina-Hernandez v. Sessions BIA Straus, IJ A099 530 448 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
Summary: 15-2978 Molina-Hernandez v. Sessions BIA Straus, IJ A099 530 448 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 (..
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15-2978
Molina-Hernandez v. Sessions
BIA
Straus, IJ
A099 530 448
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.
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
21st day of April, two thousand seventeen.
PRESENT:
REENA RAGGI,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
WALTER GIOVANNI MOLINA-HERNANDEZ,
Petitioner,
v. 15-2978
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,*
Respondent.
_____________________________________
FOR PETITIONER: Elyssa N. Williams, Glenn L.
Formica, Formica Williams, P.C., New
Haven, Connecticut.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Jefferson B.
Sessions III is substituted for Loretta E. Lynch as Respondent.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Stephen
J. Flynn, Assistant Director; James
A. Hurley, Attorney; Imran R. Zaidi,
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 Walter Giovanni Molina-Hernandez, a native and
citizen of El Salvador, seeks review of a September 11, 2015
decision of the BIA affirming a July 14, 2014 decision of an
Immigration Judge (“IJ”) denying Molina-Hernandez’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). See In re Walter
Giovanni Molina-Hernandez, No. A099 530 448 (B.I.A. Sept. 11,
2015), aff’g No. A099 530 448 (Immig. Ct. N.Y.C. July 14, 2014).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
In lieu of filing a brief, the Government moves for summary
denial of Molina-Hernandez’s petition for review. Summary
denial is warranted only if a petition is frivolous. See Pillay
v. INS, 45 F.3d 14, 17 (2d Cir. 1995). We decline to address
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whether this petition is frivolous. Molina-Hernandez has filed
his merits brief, and so we treat the Government’s motion as
a response to that brief. For the following reasons, we deny
the petition.
Insofar as the agency determined that Molina-Hernandez’s
asylum application was untimely, we lack jurisdiction to review
that factual finding, retaining jurisdiction to review only
constitutional claims or questions of law. See 8 U.S.C. §
1158(a)(2)(B), (a)(3); id. § 1252(a)(2)(D); Weinong Ling v.
Holder,
763 F.3d 244, 246–47 (2d Cir. 2014). The statute
provides, however, that an untimely asylum application “may be
considered . . . if the alien demonstrates . . . the existence
of changed circumstances which materially affect the
applicant’s eligibility for asylum.” 8 U.S.C. § 1158(a)(2)(D).
We need not here decide if Moline-Hernandez clears this hurdle
because his petition fails on the merits.
An applicant for asylum or withholding of removal “must
establish 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) (asylum); 1231(b)(3)(A)
(withholding). The agency reasonably concluded that
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Molina-Hernandez, whose application was based on a 2005 gang
attack, failed to show that the attack was motivated, even in
part, by an actual or imputed protected ground. Cf. Uwais v.
U.S. Att’y Gen., 478 F.3d 513, 517 (2d Cir. 2007) (“[A]n asylum
applicant need not show with absolute certainty why the events
occurred, but rather, only that the harm was motivated, in part,
by an actual or imputed protected ground.”). Molina-Hernandez
testified that, as a general matter, gang members would know
of his involvement in Generation 21, an anti-gang youth group.
But he did not suggest, much less compel a finding, that his
particular attackers acted on suspicion that he was opposed to
gangs or gang violence, or that he was even a member of
Generation 21 in 2005. He testified that the gang members did
not say anything about Molina-Hernandez joining their gang and
that he thought the gang members were angry because
Molina-Hernandez’s cousin had raised his voice at them. In his
asylum application, he averred that the gang members suspected
that he and his cousin were in a rival gang based on his cousin’s
tattoos.
Molina-Hernandez’s brief focuses on his membership in
Generation 21 and argues that it is viewed as taking an anti-gang
political stance and has the particularity and social
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visibility required of a particular social group. That may be
so; but Molina-Hernandez was obliged to show that his membership
in Generation 21 must have been “at least one central reason”
for the gang members’ attack. 8 U.S.C. § 1158(b)(1)(B)(i). He
does not meaningfully challenge the agency’s finding that he
failed to do so.
The agency also reasonably denied CAT relief. Unlike asylum
and withholding of removal, CAT relief does not require a nexus
to any ground, but it does require the alien to show that he
would more likely than not be tortured. See 8 C.F.R.
§§ 1208.16(c), 1208.17; Khouzam v. Ashcroft, 361 F.3d 161, 168
(2d Cir. 2004). As the BIA reasoned, Molina-Hernandez did not
allege that the gang members are looking for him, and the sole
attack occurred more than a decade ago. Molina-Hernandez never
saw his attackers again. Molina-Hernandez cites the gang
members’ death threat and background evidence of anemic and
corrupt governmental forces in El Salvador. But that evidence
would not compel any reasonable adjudicator to conclude that,
more likely than not, Molina-Hernandez will be tortured if
returned to El Salvador. See 8 U.S.C. § 1252(b)(4)(B) (stating
that the agency’s “findings of fact are conclusive unless any
5
reasonable adjudicator would be compelled to conclude to the
contrary”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Molina-Hernandez’s
motions for a stay of removal, for oral argument, and to transfer
the case to the regular argument calendar are denied as moot,
as is the Government’s motion for summary denial.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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