     17-1171
     Zelaya-Martinez v. Barr
                                                                                   BIA
                                                                           A200 818 333
                               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
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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
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 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 1st day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            BARRINGTON D. PARKER,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   ERICK GILBERTO ZELAYA-MARTINEZ,
14            Petitioner,
15
16                     v.                                        17-1171
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                      Bruno Joseph Bembi, Hempstead,
24                                        NY.
25
26   FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
27                                        Attorney General; M. Jocelyn Lopez
28                                        Wright, Senior Litigation Counsel;
29                                        Sara J. Bayram, Trial Attorney,
30                                        Office of Immigration Litigation,
31                                        United States Department of
32                                        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 DENIED.

5           Petitioner Erick Gilberto Zelaya-Martinez, a native and

6    citizen of El Salvador, seeks review of an April 6, 2017,

7    decision of the BIA denying his motion to reopen.                 In re

8    Erick Gilberto Zelaya-Martinez, No. A 200 818 333 (B.I.A. Apr.

9    6, 2017).        We assume the parties’ familiarity with the

10   underlying facts and procedural history in this case.

11          We review the agency’s denial of a motion to reopen for

12   abuse of discretion, Ali v. Gonzales, 448 F.3d 515, 517 (2d

13   Cir.    2006),   and   review   findings   of   fact   as   to   country

14   conditions underlying that decision for substantial evidence,

15   Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

16          It is undisputed that Zelaya-Martinez’s January 2017

17   motion to reopen was untimely because it was filed nearly

18   three years after his removal order became final in March

19   2014.    See 8 U.S.C. § 1229a(c)(7)(C)(i) (setting 90-day

20   deadline for filing motion to reopen).          Because the time

21   limitation does not apply if the motion is filed to apply

22   for asylum “based on changed country conditions arising in


                                        2
1    the country of nationality or the country to which removal

2    has been ordered, if such evidence is material and was not

3    available and would not have been discovered or presented

4    at the previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii),

5    the issue here is whether Zelaya-Martinez presented

6    material evidence of a change in conditions in El Salvador

7    and of his prima facie eligibility for relief, see 8 C.F.R.

8    § 1003.2(c)(1); INS v. Abudu, 485 U.S. 94, 104 (1988).               As

9    discussed below, the BIA did not err in finding that the

10   Zelaya-Martinez’s evidence was insufficient to overcome the

11   time limitation on his motion.

12          Zelaya-Martinez argues that the BIA imposed a “heavy

13   burden” standard that is not set forth in the statute.               This

14   argument fails because that standard is set forth in case

15   law.     The BIA has held that, in moving to reopen, a movant

16   shoulders a “heavy burden” of demonstrating “eligibility for

17   relief    or   to     proffer   material,    previously       unavailable

18   evidence.”     In re S-Y-G-, 24 I. & N. Dec. 247, 252 (BIA 2007).

19   That standard comports with case law from both the Supreme

20   Court    and   this    Court.     See   Abudu,   485   U.S.    at   107–10

21   (explaining     that    motions   to    reopen   are   disfavored     and

22   analogizing them to motions for a new trial in which the


                                         3
1    “moving party bears a heavy burden”); Jian Hui Shao, 546 F.3d

2    at 168 (noting that an alien’s burden for a motion to reopen

3    “is heavier than . . . petitioners who seek review from the

4    BIA’s adverse asylum rulings on direct appeal”).

5        Substantial evidence supports the BIA’s determination

6    that Zelaya-Martinez failed to show that the alleged

7    changes in El Salvador were material to his asylum claim.

8    See 8 U.S.C. § 1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d

9    at 169; In re S-Y-G-, 24 I. & N. Dec. at 253 (assessing

10   changed conditions evidence “to determine whether the

11   applicant has made a prima facie showing . . . [of] a well-

12   founded fear of persecution”).   As the BIA noted, a

13   generalized fear of gang violence and crime is not a basis

14   for asylum or withholding of removal.   Melgar de Torres v.

15   Reno, 191 F.3d 307, 314 (2d Cir. 1999) (holding that an

16   increase in general crime cannot support an asylum claim

17   because a well-founded fear of persecution must be on

18   account of an enumerated protected ground).   Nor did

19   Zelaya-Martinez’s country conditions evidence link any

20   changed conditions to a protected ground because he

21   produced no evidence that violence against his family

22   members or any increase in crime in El Salvador bore any


                                  4
1    relation to his past dispute with a corrupt police officer.

2    And he failed to explain how the increase in crime placed

3    him at risk of torture so as to merit relief under the CAT.

4    See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir.

5    2003) (explaining that for CAT relief, a petitioner must

6    establish that someone in his “particular alleged

7    circumstances is more likely than not to be tortured”

8    (emphasis omitted)).   Accordingly, he did not demonstrate

9    how any change was material to his prior asylum claim,

10   related to a protected ground, or evidence of a particular

11   risk of torture, and the BIA did not abuse its discretion

12   in denying his motion to reopen.

13       For the foregoing reasons, the petition for review is

14   DENIED.   As we have completed our review, the pending motion

15   for a stay of removal in this petition is DISMISSED as moot.

16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe,
18                               Clerk of Court
19




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