17-1171 Zelaya-Martinez v. Barr BIA A200 818 333 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 1st day of May, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 BARRINGTON D. PARKER, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 ERICK GILBERTO ZELAYA-MARTINEZ, 14 Petitioner, 15 16 v. 17-1171 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, 24 NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; M. Jocelyn Lopez 28 Wright, Senior Litigation Counsel; 29 Sara J. Bayram, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 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 DENIED.

5 Petitioner Erick Gilberto Zelaya-Martinez, a native and

6 citizen of El Salvador, seeks review of an April 6, 2017,

7 decision of the BIA denying his motion to reopen. In re

8 Erick Gilberto Zelaya-Martinez, No. A 200 818 333 (B.I.A. Apr.

9 6, 2017). We assume the parties’ familiarity with the

10 underlying facts and procedural history in this case.

11 We review the agency’s denial of a motion to reopen for

12 abuse of discretion, Ali v. Gonzales,

(2d

13 Cir. 2006), and review findings of fact as to country

14 conditions underlying that decision for substantial evidence,

15 Jian Hui Shao v. Mukasey,

(2d Cir. 2008).

16 It is undisputed that Zelaya-Martinez’s January 2017

17 motion to reopen was untimely because it was filed nearly

18 three years after his removal order became final in March

19 2014. See 8 U.S.C. § 1229a(c)(7)(C)(i) (setting 90-day

20 deadline for filing motion to reopen). Because the time

21 limitation does not apply if the motion is filed to apply

22 for asylum “based on changed country conditions arising in

2 1 the country of nationality or the country to which removal

2 has been ordered, if such evidence is material and was not

3 available and would not have been discovered or presented

4 at the previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii),

5 the issue here is whether Zelaya-Martinez presented

6 material evidence of a change in conditions in El Salvador

7 and of his prima facie eligibility for relief, see 8 C.F.R.

8 § 1003.2(c)(1); INS v. Abudu,

(1988). As

9 discussed below, the BIA did not err in finding that the

10 Zelaya-Martinez’s evidence was insufficient to overcome the

11 time limitation on his motion.

12 Zelaya-Martinez argues that the BIA imposed a “heavy

13 burden” standard that is not set forth in the statute. This

14 argument fails because that standard is set forth in case

15 law. The BIA has held that, in moving to reopen, a movant

16 shoulders a “heavy burden” of demonstrating “eligibility for

17 relief or to proffer material, previously unavailable

18 evidence.” In re S-Y-G-,

(BIA 2007).

19 That standard comports with case law from both the Supreme

20 Court and this Court. See Abudu, 485 U.S. at 107–10

21 (explaining that motions to reopen are disfavored and

22 analogizing them to motions for a new trial in which the

3 1 “moving party bears a heavy burden”); Jian Hui Shao,

at 168 (noting that an alien’s burden for a motion to reopen

3 “is heavier than . . . petitioners who seek review from the

4 BIA’s adverse asylum rulings on direct appeal”).

5 Substantial evidence supports the BIA’s determination

6 that Zelaya-Martinez failed to show that the alleged

7 changes in El Salvador were material to his asylum claim.

8 See 8 U.S.C. § 1229a(c)(7)(C)(ii); Jian Hui Shao,

at 169; In re S-Y-G-,

(assessing

10 changed conditions evidence “to determine whether the

11 applicant has made a prima facie showing . . . [of] a well-

12 founded fear of persecution”). As the BIA noted, a

13 generalized fear of gang violence and crime is not a basis

14 for asylum or withholding of removal. Melgar de Torres v.

15 Reno,

(2d Cir. 1999) (holding that an

16 increase in general crime cannot support an asylum claim

17 because a well-founded fear of persecution must be on

18 account of an enumerated protected ground). Nor did

19 Zelaya-Martinez’s country conditions evidence link any

20 changed conditions to a protected ground because he

21 produced no evidence that violence against his family

22 members or any increase in crime in El Salvador bore any

4 1 relation to his past dispute with a corrupt police officer.

2 And he failed to explain how the increase in crime placed

3 him at risk of torture so as to merit relief under the CAT.

4 See Mu-Xing Wang v. Ashcroft,

(2d Cir.

5 2003) (explaining that for CAT relief, a petitioner must

6 establish that someone in his “particular alleged

7 circumstances is more likely than not to be tortured”

8 (emphasis omitted)). Accordingly, he did not demonstrate

9 how any change was material to his prior asylum claim,

10 related to a protected ground, or evidence of a particular

11 risk of torture, and the BIA did not abuse its discretion

12 in denying his motion to reopen.

13 For the foregoing reasons, the petition for review is

14 DENIED. As we have completed our review, the pending motion

15 for a stay of removal in this petition is DISMISSED as moot.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court 19

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