20-358 Cruz-Hernandez v. Garland BIA A206 079 093

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 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 2nd day of December, two thousand twenty- two.

PRESENT: RICHARD C. WESLEY, JOSEPH F. BIANCO, ALISON J. NATHAN, Circuit Judges. _____________________________________

RONALD CRUZ-HERNANDEZ, AKA OMAR OTTONIEL ASENCIO-GONZALEZ, Petitioner,

v. 20-358 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Robert F. Graziano, Esq., Buffalo, NY.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Shelley R. Goad, Assistant Director; Kristin Moresi, 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 Ronald Cruz-Hernandez, a native and citizen

of Guatemala, seeks review of a December 27, 2019 decision of

the BIA denying his motion to reopen his removal proceedings.

In re Ronald Cruz-Hernandez, No. A206 079 093 (B.I.A. Dec.

27, 2019). We assume the parties’ familiarity with the

underlying facts and procedural history.

Our review is limited to the BIA’s denial of reopening

because Cruz-Hernandez timely petitioned for review of only

that decision. See Ke Zhen Zhao v. U.S. Dep’t of Justice,

, 89–90 (2d Cir. 2001). We review the denial of

a motion to reopen for abuse of discretion. Ali v. Gonzales,

(2d Cir. 2006). “An abuse of discretion

may be found . . . where the Board’s decision provides no

rational explanation, inexplicably departs from established

policies, is devoid of any reasoning, or contains only summary

2 or conclusory statements; that is to say, where the Board has

acted in an arbitrary or capricious manner.” Ke Zhen Zhao,

265 F.3d at 93 (internal citations omitted). The BIA did not

abuse its discretion in denying the motion to reopen because

Cruz-Hernandez did not establish prima facie eligibility for

any relief. See INS v. Abudu,

(1988) (noting

that failure to establish prima facie eligibility is an

“independent ground[] on which the BIA may deny a motion to

reopen”).

An asylum applicant must show that he suffered past

persecution, or has a well-founded fear of persecution and

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.”

(b)(1)(B)(i). “To succeed on a particular social group

claim, the applicant must establish both that the group itself

was cognizable . . . and that the alleged persecutors

targeted the applicant ‘on account of’ her membership in that

group.” Paloka v. Holder,

(2d Cir. 2014)

(citing

(a)(42)); see Castro v. Holder,

(2d Cir. 2010) (explaining that “the burden [is]

on the . . . applicant to establish a sufficiently strong

3 nexus” between a statutorily protected ground and

persecution). It is well established that “general crime

conditions” and “act[s] of random violence” are not grounds

for asylum. See Melgar de Torres v. Reno,

, 313–

14 (2d Cir. 1999); see also Ucelo-Gomez v. Mukasey,

(2d Cir. 2007) (“When the harm visited upon members of

a group is attributable to the incentives presented to

ordinary criminals rather than to persecution, the scales are

tipped away from considering those people a ‘particular

social group’ . . . .”).

In his motion to reopen, Cruz-Hernandez proposed his

family as a particular social group, arguing that the murder

of his sister Glenda in 2005 and the more recent rape of his

other sister Ana in 2019 makes it “clear that now [all] . .

. members of the . . . family are targets of extreme

violence.” Pet. Br. at 9. The BIA did not abuse its

discretion in holding that Cruz-Hernandez’s new evidence of

the 2019 rape failed to demonstrate that he would be targeted

by his sisters’ assailants. 1 He presented no evidence to

1 Given this conclusion, we express no opinion regarding whether a family is cognizable as “a particular social group” as defined in

(b)(1)(B)(i) and other immigration statutes. Cf. Matter of L-E-A-,

, 304–05 (A.G. 2021). 4 support his belief that the 2019 rape was related to the 2005

murder, and his claim was speculative, see, e.g., Pet. Br. at

8 (“[I]f the 2005 murder and 2019 rape[] are connected . . .

.”), particularly given the nearly fifteen years between the

two incidents. Absent evidence of a link, these crimes do

not support his allegation that his family members are being

targeted on account of their family membership. See INS v.

Elias-Zacarias,

(1992) (holding that an

applicant “must provide some evidence of [motive], direct or

circumstantial”).

Moreover, to the extent that Cruz-Hernandez argues he

suffered past persecution in Guatemala because he witnessed

Glenda’s murder at a young age, he did not provide any new

evidence that Glenda’s murder was on account of a protected

ground or that he shared a characteristic that motivated her

murder. See

(c)(1) (“A motion to reopen

proceedings shall not be granted unless it appears to the

Board that evidence sought to be offered is material and was

not available and could not have been discovered or presented

at the former hearing.”); Abudu, 485 U.S. at 104–05

(identifying the failure to offer such evidence as a proper

ground to deny a motion to reopen); see also Tao Jiang v.

5 Gonzales,

(2d Cir. 2007) (“[A]n asylum

applicant cannot claim past persecution based solely on harm

that was inflicted on a family member . . . because an

applicant must rely upon harm the applicant has suffered

individually.” (internal citation omitted)).

Cruz-Hernandez’s failure to show his prima facie

eligibility for asylum is dispositive with respect to an

application for withholding of removal. See

(b)(3)(A); Ramsameachire v. Ashcroft,

(2d Cir. 2004) (“Because the withholding of removal analysis

overlaps factually with the asylum analysis, but involves a

higher burden of proof, an alien who fails to establish his

entitlement to asylum necessarily fails to establish his

entitlement to withholding of removal.”).

Finally, the BIA did not abuse its discretion in

concluding that Cruz-Hernandez did not state a prima facie

claim for Convention Against Torture (“CAT”) relief.

Although a CAT claim does not require a nexus to a protected

ground, Cruz-Hernandez did not identify a reason he would be

singled out for torture other than his above-discussed family

membership. Accordingly, he did not present evidence to meet

his burden of showing that “someone in his particular alleged

6 circumstances [was] more likely than not to be tortured.” Mu

Xiang Lin v. U.S. Dep’t of Justice,

(2d

Cir. 2005) (emphasis omitted); see also

(c)(2).

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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