    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

                               2
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


                                  3
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


                                    4
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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