     13-1291
     Can v. Holder
                                                                                 BIA
                                                                          Vomacka, IJ
                                                                         A089 082 405
                          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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 16th day of April, two thousand fifteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   DANILO NIJ CAN, AKA DANILO CAN, AKA
14   DANICO NIJCAN, AKA DANILO NIJ,
15              Petitioner,
16
17                   v.                                        13-1291
18                                                             NAC
19   ERIC H. HOLDER, JR., UNITED
20   STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                 James Bouklas, Bouklas Gaylord
26                                   LLP, Syosset, New York.
27
28   FOR RESPONDENT:                 Stuart F. Delery, Assistant
29                                   Attorney General; William C.
 1                                    Peachey, Assistant Director;
 2                                    Rebecca Hoffberg Phillips, Trial
 3                                    Attorney, Office of Immigration
 4                                    Litigation, Washington, D.C.
 5
 6          UPON DUE CONSIDERATION of this petition for review of a

 7   Board of Immigration Appeals (“BIA”) decision, it is hereby

 8   ORDERED, ADJUDGED, AND DECREED that the petition for review

 9   is DISMISSED as to asylum, and DENIED in all other respects.

10          Petitioner    Danilo    Nij    Can,    a     native    and    citizen   of

11   Guatemala, seeks review of a March 13, 2013, decision of the

12   BIA affirming an August 12, 2011, decision of an Immigration

13   Judge     (“IJ”)     denying     Can’s       application        for      asylum,

14   withholding    of    removal,    and       relief    under    the     Convention

15   Against Torture (“CAT”).             In re Nij Can, No. A089 082 405

16   (B.I.A. Mar. 13, 2013), aff’g No. A089 082 405 (Immig. Ct.

17   N.Y.    City   Aug.    12,     2011).         We     assume     the     parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20          Under   the    circumstances          of     this     case,     we   have

21   considered “both the IJ’s and the BIA’s opinions ‘for the

22   sake of completeness.’”         Zaman v. Mukasey, 514 F.3d 233, 237

23   (2d Cir. 2008) (per curiam) (quoting Wangchuck v. DHS, 448

                                            2
 1   F.3d 524, 528 (2d Cir. 2006)).                    The applicable standards of

 2   review are well established.                    See 8 U.S.C. § 1252(b)(4)(B);

 3   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 4   Because Can has not challenged the denial of CAT relief, we

 5   address      only    the    agency’s      rulings       regarding      asylum    and

 6   withholding of removal.              See Yueqing Zhang v. Gonzales, 426

 7   F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

 8   I.     Pretermission of Asylum

 9          An   asylum       applicant    must        demonstrate    “by    clear     and

10   convincing      evidence      that    the        application     has    been    filed

11   within 1 year after the date of the alien’s arrival in the

12   United      States,”      unless,    in     relevant     part,    the    applicant

13   establishes “changed circumstances which materially affect

14   the     applicant’s        eligibility”           for   asylum.          8     U.S.C.

15   §     1158(a)(2)(B),        (D).      Our        jurisdiction     to    review     an

16   agency’s determination regarding the timeliness of an asylum

17   application         is     limited     to        constitutional        claims     and

18   questions of law.            8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D);

19   see also Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 285 (2d

20   Cir. 2009).          Here, we lack jurisdiction to review Can’s

21   challenge to the agency’s pretermission of asylum because he
                                                 3
 1   disputes     only     the    correctness        of        the   agency’s         factual

 2   determination that his brother’s murder was not a changed

 3   circumstance, whereas his application was based on alleged

 4   incidents of persecution that predated the murder.                              See Xiao

 5   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

 6   2006).

 7   II. Withholding of Removal—Nexus Finding

 8         An alien is eligible for withholding of removal if it

 9   is more likely than not that his “life or freedom would be

10   threatened in [the country of removal] because of [his]

11   race,    religion,     nationality,          membership         in    a    particular

12   social      group,      or        political      opinion.”                 8      U.S.C.

13   § 1231(b)(3)(A); see also Castro v. Holder, 597 F.3d 93, 100

14   (2d Cir. 2010).         We confine our review to the ground that

15   Can     raises   in    his    brief:     that        he     suffered       and     fears

16   persecution because of his political opinion, defined as

17   neutrality in response to gangs’ threats and extortion.                              See

18   Yueqing Zhang, 426 F.3d at 541 n.1.

19         The   agency     reasonably       concluded          that      Can   failed     to

20   establish    a   nexus       to   a   protected       ground.         To       establish

21   persecution because of political opinion, Can was required
                                              4
 1   to demonstrate that gangs were motivated, at least in part,

 2   by their perception of Can’s political opinion.               Id. at 545.

 3   No evidence shows that the armed individuals threatened him

 4   for any reason other than pecuniary gain, let alone because

 5   of his political opinion or another protected ground.                      Cf.

 6   INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992).                   While he

 7   testified that tried to resist giving in to the extortion,

 8   he did not show that he did so to express a political

 9   opinion.      Further, he did not testify that he was involved

10   in   political    activity    or    perceived     to   have   a   political

11   opinion.      To the contrary, he testified that he was targeted

12   when he might have money, such as at a bank or restaurant.

13   However, “persecution must be on account of an enumerated

14   ground set forth in the Act, and general crime conditions

15   are not a stated ground.”            Melgar de Torres v. Reno, 191

16   F.3d   307,    314   (2d   Cir.    1999);   see   also   Ucelo-Gomez       v.

17   Mukasey, 509 F.3d 70, 73-74 (2d Cir. 2007) (per curiam)

18   (affirming     BIA’s   holding     that   “harm   motivated       purely   by

19   wealth is not persecution”).              Accordingly, the agency did

20   not err in finding that he failed to establish a nexus to a

21   protected ground.      Elias-Zacarias, 502 U.S. at 481 n.1.
                                          5
 1       For the foregoing reasons, the petition for review is

 2   DISMISSED as to asylum and DENIED in all other respects.     As

 3   we have completed our review, any stay of removal that the

 4   Court previously granted in this petition is VACATED, and

 5   any pending motion for a stay of removal in this petition is

 6   DISMISSED as moot.   Any pending request for oral argument in

 7   this petition is DENIED in accordance with Federal Rule of

 8   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

 9   34.1(b).

10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk
12
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