     16-3174
     Gonzales v. Sessions
                                                                                       BIA
                                                                               A094 923 510
                             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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   16th day of November, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            ROBERT D. SACK,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MARIA JEWEL ELINZANO GONZALES,
14            Petitioner,
15
16                      v.                                           16-3174
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Felix Q. Vinluan, Woodside, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; Russell J.E.
27                                       Verby, Senior Litigation Counsel;
28                                       Nancy Kwang Canter, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       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 is

4    DENIED.

5         Petitioner Maria Jewel Elinzano Gonzales, a native and

6    citizen of the Philippines, seeks review of an August 15, 2016,

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

8    Jewel Elinzano Gonzales, No. A 094 923 510 (B.I.A. Aug. 15,

9    2016).    We assume the parties’ familiarity with the underlying

10   facts and procedural history in this case.

11        We have reviewed only the BIA’s denial of Gonzales’s 2016

12   motion, not the agency’s underlying decisions.       See Ke Zhen

13   Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).

14   We review that denial for abuse of discretion.   Ali v. Gonzales,

15   448 F.3d 515, 517 (2d Cir. 2006).   “An abuse of discretion may

16   be found in those circumstances where the Board’s decision

17   provides no rational explanation, inexplicably departs from

18   established policies, is devoid of any reasoning, or contains

19   only summary or conclusory statements.”    Kaur v. BIA, 413 F.3d

20   232, 233 (2d Cir. 2005) (internal quotation marks omitted).   We

21   review the BIA’s factual findings about country conditions for

22   substantial evidence.    Jian Hui Shao v. Mukasey, 546 F.3d 138,


                                     2
 1   169 (2d Cir. 2008).

 2       An alien may file one motion to reopen no later than 90 days

 3   after the final administrative decision was rendered.

 4   8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).

 5   Those time and number limitations may be excused if the motion

 6   is filed to apply for asylum “based on changed country

 7   conditions arising in the country of nationality or the country

 8   to which removal has been ordered, if such evidence is material

 9   and was not available and would not have been discovered or

10   presented at the previous proceedings.”    8 U.S.C.

11   § 1229a(c)(7)(A), (C)(ii); see also 8 C.F.R. § 1003.2(c)(3).

12   In addition to applying the time and number limitations, the

13   BIA “may deny a motion to reopen based upon the failure to

14   establish a prima facie case for the relief sought.”     Matter

15   of Coelho, 20 I. & N. Dec. 464, 472 (BIA 1992); see also INS

16   v. Abudu, 485 U.S. 94, 104 (1988).

17       Gonzales’s 2016 motion to reopen ran afoul of the time and

18   number limitations: it was her second motion, filed more than

19   90 days after the BIA’s October 2015 decision.    8 U.S.C.

20   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    Gonzales,

21   however, presses changed country conditions since her original

22   merits hearing in 2008.   8 U.S.C. § 1229a(c)(7)(C)(ii); In re


                                    3
1    S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007) (the agency

2    “compare[s] the evidence of country conditions submitted with

3    the motion to those that existed at the time of the merits

4    hearing below”).   Substantial evidence supports the BIA’s

5    finding that conditions have not changed.     Gonzales’s mother

6    described run-ins with Gonzales’s ex-husband that did not

7    differ materially from the abuse Gonzales described at her

8    merits hearing.    Although this determination is dispositive,

9    as discussed below, we find no error in the BIA’s alternative

10   conclusion that Gonzales failed to establish her prima facie

11   eligibility for withholding of removal or relief under the

12   Convention Against Torture (“CAT”).

13       The BIA reasonably found that Gonzales failed to establish

14   her prima facie eligibility for withholding of removal on the

15   grounds that her motion did not explain why she cannot relocate

16   in the Philippines.   Withholding of removal is unavailable if

17   the alien “could avoid a future threat to his or her life or

18   freedom by relocating to another part of the proposed country

19   of removal and, under all the circumstances, it would be

20   reasonable to expect the applicant to do so.”     8 C.F.R.

21   § 1208.16(b)(2).    The agency had questioned why Gonzales could

22   not relocate.   The BIA was within its discretion to find that


                                     4
1    Gonzales’s latest motion to reopen failed to answer that

2    question.

3        The BIA also reasonably found that Gonzales failed to

4    establish her prima facie eligibility for CAT relief.    The CAT

5    regulations define torture as “pain and suffering inflicted by

6    or at the instigation of or with the consent or acquiescence

7    of a public official or other person acting in an official

8    capacity.”   8 C.F.R. § 1208.18(a)(1).    Gonzales testified

9    that after abusive episodes she did not go to the police, drawing

10   no connection between the abuse and any governmental official’s

11   consent or acquiescence.

12       Finally, Gonzales received all the process due to her: a

13   hearing before the IJ, an appeal to the BIA, and consideration

14   of her motions for reopening.   The statute does not require the

15   BIA to remand for an evidentiary hearing absent a showing of

16   changed conditions and prima facie eligibility for asylum. 8

17   U.S.C. § 1229a(c)(7)(B), (C)(ii); Xiao Ji Chen v. U.S. Dep’t

18   of Justice, 434 F.3d 144, 155 (2d Cir. 2006) (“Petitioner points

19   to nothing in the record suggesting that she was denied a full

20   and fair opportunity to present her claims; nor has she

21   established that the IJ or BIA otherwise deprived her of

22   fundamental fairness.”).


                                     5
1        For the foregoing reasons, the petition for review is

2    DENIED.    As we have completed our review, any stay of removal

3    that the Court previously granted in this petition is VACATED,

4    and any pending motion for a stay of removal in this petition

5    is DISMISSED as moot.    Any pending request for oral argument

6    in this petition is DENIED in accordance with Federal Rule of

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

8    34.1(b).

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




                                    6
