19-2630 Najera-Torres v. Garland BIA A096 182 709

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 9th day of March, two thousand twenty-two.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, SUSAN L. CARNEY, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

JENIE IVETH NAJERA-TORRES, Petitioner,

v. 19-2630 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Weronika K. Costas, The Costas Network Law Center, LLC, Independence, OH.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Shelley R. Goad, Assistant Director, Office of Immigration Litigation; Carmel A. Morgan, 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 Jenie Iveth Najera-Torres, a native and

citizen of Honduras, seeks review of February 23, 2018 and

July 24, 2019 decisions of the BIA, denying her second motion

to reopen. In re Jenie Iveth Najera-Torres, No. A096 182 709

(B.I.A. Feb. 23, 2018 & July 24, 2019). 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. Shao v. Mukasey,

(2d Cir. 2008). In that context, the BIA abuses its

discretion “only if the BIA's decision-making was arbitrary

or capricious, as evidenced by a decision that provides no

rational explanation for the agency's conclusion,

2 inexplicably departs from established policies, is devoid of

any reasoning, or contains only summary or conclusory

statements.”

(internal quotation marks and

citations omitted). We review the agency’s findings of fact

under the substantial evidence standard. Chen v. U.S. Atty.

Gen.,

(2d Cir. 2007). Under that standard,

“administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.”

(b)(4)(B); Corovic v. Mukasey,

(2d Cir. 2008).

In her motion to reopen, Najera-Torres asserted that

domestic and gang violence had increased in Honduras, and

that this circumstance excused the time and number

limitations that otherwise barred her motion. She also

asserted that these conditions demonstrated her prima facie

eligibility for asylum and related relief based on her

membership in the particular social groups of “Honduran women

in a domestic relationship who are unable to leave” and

relatives of her brother, who was murdered in Honduras in

2010 purportedly for reporting a robbery.

It is undisputed that Najera-Torres’s 2017 motion was 3 untimely and number-barred because it was her second motion

to reopen and she filed it more than 14 years after she was

ordered removed in 2003. See 8 U.S.C. § 1229a(c)(7)(A),

(C)(i);

(c)(2). These time and number

limits, however, do not apply if reopening is sought to apply

for asylum and the motion “is based on changed country

conditions arising in 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 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see

(c)(3).

Even if it could be argued that increased violence

against women in Honduras constituted a changed country

condition since the time of her 2003 removal order, the BIA

did not err in determining that such changes in Honduras were

not material to Najera-Torres’s petition, which asserted that

Najera-Torres was part of a protected class of “Honduran

wom[e]n in a domestic relationship who are unable to leave”

while at the same time acknowledged that she was no longer in

a domestic relationship with her abusive ex-partner. The BIA

also did not err in concluding that evidence reflecting 4 problems with gang violence in Honduras beginning in the 1990s

did not show a material change since Najera-Torres’s 2003

removal order. See

Because the BIA reasonably concluded that Najera-Torres

failed to demonstrate a material change in conditions in

Honduras, it did not abuse its discretion in denying her

motion as untimely and number-barred. See 8 U.S.C.

§ 1229a(c)(7)(A), (C). Because the agency’s denial of her

motion as untimely and number-barred is dispositive of her

claims, we do not reach the BIA’s alternative basis for

denying Najera-Torres’s motion: her failure to establish her

prima facie eligibility for relief. See INS v. Bagamasbad,

(1976) (“As a general rule courts and agencies

are not required to make findings on issues the decision of

which is unnecessary to the results they reach.”).

Nevertheless, we observe that the record does not reflect

error in this regard because the evidence suggested that

Najera-Torres’s ex-partner had not focused attention on her

since 2012, and there was no record evidence suggesting that

the individuals who murdered her brother in 2010 had also

targeted his relatives in Honduras. See Huang v. U.S. INS, 5

(2d Cir. 2005) (“In the absence of solid

support in the record . . . , [an applicant’s] fear is

speculative at best.”); Melgar de Torres v. Reno,

(2d Cir. 1999) (finding fear of future persecution

weakened when similarly situated family members remain

unharmed in petitioner’s native country).

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

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