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 2021-01

Espinal-Cruz v. Rosen ( 2021 )


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  •    19-1
Espinal-Cruz v. Rosen
BIA
A099 668 207/208/209
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 5th day of January, two thousand twenty-one.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
CARMEN SUYAPA ESPINAL-CRUZ,
JONATHAN JOSUE ESPINAL-CRUZ,
DARWIN EDUARDO URBINA-ESPINAL
Petitioners,
v.                                19-1
NAC
JEFFREY A. ROSEN, ACTING UNITED
STATES ATTORNEY GENERAL,
Respondent. 1
_____________________________________
1
Jeffrey A. Rosen, Acting United States Attorney
General, is automatically substituted for former Attorney
General William P. Barr per Federal Rule of Appellate
Procedure 43(c)(2). The Clerk of the Court is directed to
amend the caption to conform to the above.
FOR PETITIONERS:              Raymond G. Lahoud, Esq., Norris
Mclaughlin, P.A., Allentown, PA.
FOR RESPONDENT:               Jeffrey Bossert Clark, Acting
Assistant Attorney General; Margot
L. Carter, Senior Litigation
Counsel; Aaron D. Nelson, 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.
Petitioners Carmen Suyapa Espinal-Cruz, Jonathan Josue
Espinal-Cruz, and Darwin Eduardo Urbina-Espinal, natives and
citizens of Honduras, seek review of a December 4, 2018,
decision of the BIA denying their motion to reopen.              See In
re   Carmen   Suyapa   Espinal-Cruz,   et    al.,   Nos.   A 099    668
207/208/209 (B.I.A. Dec. 4, 2018).          We assume the parties’
familiarity with the underlying facts and procedural history.
We review the BIA’s denial of a motion to reopen for
abuse of discretion.     See Jian Hui Shao v. Mukasey,
    546 F.3d 138
    ,    168–69   (2d   Cir.   2008).    It    is    undisputed     that
Petitioners’ motion to reopen was untimely and number barred,
2
as it was their second motion to reopen and they filed it
nine years after the BIA’s final administrative decision.
See     8 U.S.C.       § 1229a(c)(7)(A),          (C)(i);
    8 C.F.R. § 1003.2
    (c)(2).      There is an exception to these limitations
if the motion is filed to seek asylum “based on changed
country conditions arising in the country of nationality or
the country to which removal has been ordered, if such
evidence is material and was not available and would not have
been discovered or presented at the previous proceedings.”
8 U.S.C.     § 1229a(c)(7)(C)(ii);         see       also
    8 C.F.R. § 1003.2
    (c)(3)(ii).       Furthermore,     such    new   and   material
evidence must support the movant’s prima facie eligibility
for asylum and withholding of removal.       See INS v. Abudu,
    485 U.S. 94
    , 104 (1988); see also Singh v. Mukasey,
    536 F.3d 149
    ,
154-55 (2d Cir. 2008).
We hold that the BIA did not abuse its discretion by
denying reopening because Petitioners failed to establish
their prima facie eligibility for asylum and withholding of
removal.    An increase in gang violence            in Honduras, as
Petitioners’ proffered evidence purportedly shows, is not
material   because    Petitioners    did   not    establish    a   nexus
3
between their fear of gangs and a protected ground.        See
Ucelo-Gomez v. Mukasey,
    509 F.3d 70
    ,     74 (2d Cir. 2007)
(rejecting claim based on perceived wealth); Melgar de Torres
v. Reno,
    191 F.3d 307
    , 313–14 (2d Cir. 1999) (holding that
“an act of random violence” and “general crime conditions”
cannot support asylum claim).    To the extent that Espinal-
Cruz argues that she would be targeted on account of her
membership in a particular social group of single women
without male protection, she did not argue this point before
the BIA, and therefore it is not properly before us.   See Lin
Zhong v. U.S. Dep’t of Justice,
    480 F.3d 104
    , 122 (2d Cir.
2007) (holding that generally petitioner must exhaust issues
before the BIA).
Lastly, we decline to reach Petitioners’ claim under the
Convention Against Torture, which was not argued in their
motion to reopen or raised in their opening brief in this
Court.   See id.; Patterson v. Balsamico,
    440 F.3d 104
    , 113
n.5 (2d Cir. 2006) (“This Court generally will not consider
arguments raised for the first time in a reply brief.”).
4
For the foregoing reasons, the petition for review is
DENIED.   All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
5