     18-2434
     Lkhamjav v. Barr
                                                                                   BIA
                                                                              Ruehle, IJ
                                                                           A205 152 815
                             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 28th day of April, two thousand twenty.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            WILLIAM J. NARDINI,
 9            STEVEN J. MENASHI,
10                 Circuit Judges.
11   _____________________________________
12
13   GANBAATAR LKHAMJAV, AKA LKHAMJAV
14   GANBAATAR, AKA GARBAATAR
15   LKHANJAV,
16             Petitioner,
17
18                      v.                                       18-2434
19                                                               NAC
20   WILLIAM P. BARR, UNITED STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                    Frederick P. Korkosz, Albany, NY.
26
27   FOR RESPONDENT:                    Joseph H. Hunt, Assistant
28                                      Attorney General; Cindy S.
29                                      Ferrier, Assistant Director;
30                                      Genevieve M. Kelly, Attorney,
31                                      Office of Immigration Litigation,
32                                      United States Department of
33                                      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 DISMISSED in part and DENIED in part.

5        Petitioner Ganbaatar Lkhamjav, a native and citizen of

6    Mongolia, seeks review of an August 9, 2018, decision of the

7    BIA affirming a July 20, 2017, decision of an Immigration

8    Judge (“IJ”) denying his application for asylum, withholding

9    of removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Ganbaatar Lkhamjav, No. A 205 152 815 (B.I.A.

11   Aug. 9, 2018), aff’g No. A205 152 815 (Immig. Ct. Buffalo

12   July 20, 2017).      We assume the parties’ familiarity with the

13   underlying facts and procedural history.

14       We have reviewed both the IJ’s and the BIA’s opinions

15   “for the sake of completeness.”                Wangchuck v. Dep’t of

16   Homeland    Sec.,    448   F.3d   524,   528   (2d   Cir.    2006).   The

17   applicable standards of review are well established.                  See

18   8 U.S.C. § 1252(b)(4)(B); Y.C. v. Holder, 741 F.3d 324, 332

19   (2d Cir. 2013).

20       The     agency    concluded     that   Lkhamjav     is    statutorily

21   ineligible for asylum because his application was untimely

22   filed.     See 8 U.S.C. § 1158 (a)(2)(B).        The agency considered

                                         2
 1   Lkhamjav’s     argument   that    changed    country     conditions—

 2   specifically    that   those   who    allegedly    targeted    him   in

 3   Mongolia had become more powerful—excused his delay in filing

 4   his application.       See 8 U.S.C. § 1158(a)(2)(D).          But the

 5   agency   determined    that    Lkhamjav   failed    to   demonstrate

 6   extraordinary or changed circumstances that would excuse the

 7   untimely filing of his application.           This is a factual

 8   determination that we lack jurisdiction to review.            8 U.S.C.

 9   § 1158(a)(3); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

10   315, 329 (2d Cir. 2006) (“[W]e remain deprived of jurisdiction

11   to review decisions under the INA when the petition for review

12   essentially disputes the correctness of an IJ’s fact-finding

13   or the wisdom of his exercise of discretion and raises neither

14   a constitutional claim nor a question of law.”).         Because the

15   untimely filing of his application resolves his asylum claim,

16   we dismiss Lkhamjav’s petition for review of his asylum claim

17   for lack of jurisdiction.

18       The agency did not err in concluding that Lkhamjav failed

19   to satisfy his burden of proof for withholding of removal

20   based on his claim that he was detained and threatened in

21   Mongolia on account of his membership in the particular social

22   group of “persons who have run afoul of persons in power.”

                                       3
 1         In order to establish eligibility for withholding of

 2   removal, an applicant must establish “that race, religion,

 3   nationality, membership in a particular social group, or

 4   political opinion was or will be ‘at least one central

 5   reason’” for persecuting the applicant.          Matter of C-T-L-,

 6   25 I. & N. Dec. 341, 348 (BIA 2010); 8 U.S.C. § 1231(b)(3)(A).

 7   “An applicant for . . . withholding of removal seeking relief

 8   based on ‘membership in a particular social group’ must

 9   establish that the group is (1) composed of members who share

10   a     common   immutable     characteristic,     (2) defined        with

11   particularity, and (3) socially distinct within the society

12   in question.”      Matter of M-E-V-G-, 26 I. & N. Dec. 227, 227

13   (BIA 2014).

14         To satisfy the particularity requirement, a social group

15   “must be defined by characteristics that provide a clear

16   benchmark for determining who falls within the group.”              Id.

17   at 239.    As the agency concluded, Lkhamjav’s proposed social

18   group did not satisfy the particularity requirement because

19   its   boundaries    were   overbroad   and   narrowed   only   by   the

20   subjectively defined terms “run afoul of” and “persons in

21   power.”    See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir.

22   2007) (“If ‘wealth’ defined the boundaries of a particular

                                       4
 1   social group, a determination about whether any petitioner

 2   fit into the group (or might be perceived as a member of the

 3   group) would necessitate a sociological analysis as to how

 4   persons with various assets would have been viewed by others

 5   in their country.”); see also Matter of S-E-G-, 24 I. & N.

 6   Dec. 579, 585 (BIA 2008) (finding too amorphous the proposed

 7   group   of        “male    children     who    lack      stable     families     and

 8   meaningful adult protection[] [and] who are from middle and

 9   low income classes . . . because people’s ideas of what those

10   terms mean can vary” (internal quotation marks omitted)).

11         Because the boundaries of Lkhamjav’s proposed social

12   group     cannot      be    objectively        drawn,     the      group   is   not

13   cognizable.        See Hernandez-Chacon v. Barr, 948 F.3d 94, 101;

14   see   also    Matter       of    M-E-V-G-,     26   I.    &   N.   Dec.    at   237.

15   Furthermore, Lkhamjav, who testified that he was and would be

16   targeted for collecting loans and seizing property on behalf

17   of a bank, did not assert that he was or would be targeted on

18   account of any of the other protected grounds, such as race,

19   religion, nationality, or political opinion.                        See 8 U.S.C.

20   § 1231(b)(3)(A).            Because Lkhamjav failed to establish a

21   nexus between past and prospective harm and a protected

22   ground,      he    failed       to   satisfy   his    burden       of   proof    for

                                              5
 1   withholding   of   removal.    See   8 U.S.C.   § 1231(b)(3)(A).

 2   Accordingly, we do not consider the agency’s alternative

 3   dispositive bases for denying that       relief.    See INS v.

 4   Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts

 5   and agencies are not required to make findings on issues the

 6   decision of which is unnecessary to the results they reach.”).

 7   We also do not reach the agency’s denial of CAT relief because

 8   Lkhamjav does not challenge that ruling in his brief.       See

 9   Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d

10   Cir. 2005) (finding abandoned issues and claims not raised in

11   opening brief).

12       For the foregoing reasons, the petition for review is

13   DISMISSED in part and DENIED in part.      All pending motions

14   and applications are DENIED and stays VACATED.

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




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