     17-3351
     Medel Corona v. Barr
                                                                                   BIA
                                                                             Loprest, IJ
                                                                           A088 442 425
                            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 15th day of July, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   IVAN MEDEL CORONA,
14            Petitioner,
15
16                     v.                                        17-3351
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Charles Christophe, New York, NY.
24
25   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
26                                     Attorney General; Terri J.
27                                     Scadron, Assistant Director;
28                                     Manuel A. Palau, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     United States Department of
31                                     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 Ivan Medel Corona, a native and citizen of

6    Mexico, seeks review of a September 20, 2017 decision of the

7    BIA affirming an August 22, 2016 decision of an Immigration

8    Judge (“IJ”) denying asylum, withholding of removal, and

9    relief under the Convention Against Torture (“CAT”).          In re

10   Ivan Medel Corona, No. A088 442 425 (B.I.A. Sept. 20, 2017),

11   aff’g No. A088 442 425 (Immig. Ct. N.Y. City Aug. 22, 2016).

12   We assume the parties’ familiarity with the underlying facts

13   and procedural history in this case.

14       Under the circumstances of this case, we have considered

15   both the IJ’s and the BIA’s decisions “for the sake of

16   completeness.”      Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

17   524, 528 (2d Cir. 2006).       The applicable standards of review

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

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

20   Asylum: One-Year Filing Deadline

21       An alien is ineligible for asylum “unless the alien

22   demonstrates   by    clear   and   convincing   evidence   that   the

23   application has been filed within 1 year after the date of
                                  2
1    the   alien’s    arrival   in     the    United    States.”         8 U.S.C.

2    § 1158(a)(2)(B).      An application may be considered outside

3    the     one-year      deadline,         however,    “if       the      alien

4    demonstrates . . . the existence of changed circumstances

5    which   materially    affect    the     applicant’s      eligibility    for

6    asylum or extraordinary circumstances relating to the delay,”

7    id. § 1158(a)(2)(D), and the application is filed within a

8    reasonable time, 8 C.F.R. § 1208.4(a)(4)(ii), (a)(5).                   Our

9    jurisdiction to review the agency’s findings regarding the

10   timeliness of an asylum application and the circumstances

11   excusing   the     untimeliness    is    limited    to   “constitutional

12   claims or questions of law.”             See 8 U.S.C. §§ 1158(a)(3),

13   1252(a)(2)(D).

14         Medel Corona does not raise a colorable constitutional

15   claim or question of law regarding the agency’s pretermission

16   of asylum.      He concedes that his application was untimely,

17   as he entered the United States in 2003 and did not file for

18   asylum until 2011.       He argues that his parents’ arrests in

19   2007 constituted a change in circumstances and that he filed

20   for asylum within a reasonable time after the arrests.                 What

21   is a reasonable time after a change in circumstances is a

22   fact-specific inquiry.      See Matter of T-M-H- & S-W-C-, 25 I.

23   & N. Dec. 193, 193 (B.I.A. 2010) (“Although there may be some
                                   3
1    rare cases in which a delay of one year or more may be

2    justified because of particular circumstances, in most cases

3    such a delay would not be justified.”).              The agency found

4    that, assuming the arrests were a changed circumstance, Medel

5    Corona’s    three-year    delay      after     the   arrests   was   not

6    reasonable.    The agency rejected Medel Corona’s explanation

7    that he “had other legal issues that . . . took precedence.”

8    Certified Administrative Record (“CAR”) at 15.             His challenge

9    to the agency’s determination that this was not a reasonable

10   delay “merely quarrels over the correctness of the factual

11   findings” relating to his specific circumstances and does not

12   raise a question of law.          Xiao Ji Chen v. U.S. Dep’t of

13   Justice, 471 F.3d 315, 329 (2d Cir. 2006).               Accordingly, we

14   lack jurisdiction to further review the denial of asylum as

15   untimely.    See 8 U.S.C. § 1158(a)(3).

16   Withholding of Removal

17       For withholding of removal, “the applicant must establish

18   that race, religion, nationality, membership in a particular

19   social group, or political opinion was or will be at least

20   one central reason for persecuting the applicant.”              8 U.S.C.

21   §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also Matter of C-T-

22   L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010) (applying “one

23   central    reason”   standard   to       withholding).     Medel   Corona
                                          4
1    claims withholding of removal based on imputed political

2    opinion and his membership in the “quasi social group” of the

3    “biological son of a man whose wife is an influential member

4    of    [the    Partido   Revolucionario       Institucional      (“PRI”)].”

5    Petitioner’s Br. at 12, 14.          We find no error in the agency’s

6    denial of withholding of removal.

7           To    demonstrate    that   past    persecution   or     a    fear    of

8    persecution is on account of political opinion, the applicant

9    must “show, through direct or circumstantial evidence, that

10   the    persecutor’s     motive     to     persecute    arises       from    the

11   applicant’s political belief,” rather than merely by the

12   persecutor’s own opinion.            Yueqing Zhang v. Gonzales, 426

13   F.3d    540,    545   (2d   Cir.     2005)   (emphasis    added).           The

14   persecution may be on account of an opinion imputed to the

15   applicant by the persecutor, regardless of whether or not

16   this imputation is accurate.            See Chun Gao v. Gonzales, 424

17   F.3d 122, 129 (2d Cir. 2005).

18          The agency reasonably concluded that Medel Corona did

19   not demonstrate that the men who harassed and beat him at the

20   direction of his biological father’s wife did so on account

21   of his actual or imputed anti-PRI political opinion.                        The

22   record supports the agency’s conclusion that Medel Corona’s

23   biological      father’s     wife,      though   she   was      politically
                                             5
1    connected, harmed Medel Corona for personal reasons.       Medel

2    Corona did not testify that he had any political views or

3    that he was opposed to the PRI.       The men who harassed and

4    attacked Medel Corona never mentioned the PRI or politics;

5    they only disparaged his family and told him to stay away

6    from    his   biological   father.    Without   any   direct   or

7    circumstantial evidence that the men targeted him or would

8    target him on account of his political opinion, imputed or

9    otherwise, the BIA did not err in finding that he failed to

10   establish his eligibility for withholding on that ground.

11   See Yueqing Zhang, 426 F.3d at 545.

12          To the extent Medel Corona’s social group claim is

13   distinct from his imputed political opinion claim, he did not

14   argue his social group claim before the IJ.     Accordingly, the

15   BIA properly deemed it waived on appeal and did not consider

16   it.    See Prabhudial v. Holder, 780 F.3d 553, 555 (2d Cir.

17   2015) (per curiam) (“[T]he BIA may refuse to consider an issue

18   that could have been, but was not, raised before an IJ.”).

19   CAT Protection

20          To receive protection under the CAT, an applicant must

21   “establish that it is more likely than not that he . . . would

22   be tortured if removed to the proposed country of removal.”

23   8 C.F.R. § 1208.16(c)(2).      CAT relief does not require a
                                     6
1    nexus to a protected ground.               See id.    “Torture is defined

2    as any act by which severe pain or suffering, whether physical

3    or mental, is intentionally inflicted on a person . . . at

4    the instigation of or with the consent or acquiescence of a

5    public   official     or     other    person     acting    in     an    official

6    capacity.”      8     C.F.R.    §     1208.18(a)(1);       see     Khouzam       v.

7    Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).

8        Medel Corona argues that because he was beaten at the

9    instigation    of    “his    biological       father’s     wife    who      is   an

10   influential [PRI] member,” it logically follows that he will

11   be tortured “with the acquiescence of the current Mexican

12   government.”    Petitioner’s Br. at 16–17.             This claim is more

13   speculative    than       logical,    as   it   is   undermined        by   Medel

14   Corona’s testimony that when he reported his first attack to

15   the police, they were responsive and said they would look for

16   his assailants.       See Jian Xing Huang v. U.S. INS, 421 F.3d

17   125, 129 (2d Cir. 2005) (per curiam) (holding that “[i]n the

18   absence of solid support in the record” for a claim of future

19   persecution, an applicant’s “fear is speculative at best”).

20   Though the police were unsuccessful in preventing a second

21   attack, the failure did not appear to be the result of

22   acquiescence,       and    Medel     Corona     conceded    that       he   never

23   followed up with the police about their efforts to find his
                                  7
1    attackers.    Cf. Khouzam, 361 F.3d at 171 (“[T]orture requires

2    only that government officials know of or remain willfully

3    blind   to    an    act   and    thereafter      breach     their    legal

4    responsibility to prevent it.”).            The generalized evidence

5    of government and police corruption and the PRI’s power in

6    Mexico, without more, did not establish that Medel Corona

7    will more likely than not be tortured with the consent or

8    acquiescence of the Mexican government.           See Mu-Xing Wang v.

9    Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (“[W]hile Wang’s

10   testimony    as    well   as   some   of   his   ‘country    conditions’

11   documents indicate that some prisoners in China have been

12   tortured, Wang has in no way established that someone in his

13   particular alleged circumstances is more likely than not to

14   be tortured if imprisoned in China.” (citation omitted)); see

15   also Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160

16   (2d Cir. 2005) (requiring “particularized evidence” beyond

17   general country conditions to support a CAT claim).                 Absent

18   particularized evidence that the authorities would acquiesce

19   to Medel Corona’s torture, the agency did not err in denying

20   CAT relief.       See Savchuck v. Mukasey, 518 F.3d 119, 123 (2d

21   Cir. 2008) (per curiam) (“[A]n alien will never be able to

22   show that he faces a more likely than not chance of torture

23   if one link in the chain cannot be shown to be more likely
                                  8
1    than not to occur.” (quoting In re J-F-F-, 23 I. & N. Dec.

2    912, 918 n.4 (AG 2006))).

3        For the foregoing reasons, the petition for review is

4    DISMISSED in part as to asylum and DENIED in remaining part

5    as to withholding of removal and CAT relief.     As we have

6    completed our review, Medel Corona’s pending motion for a

7    stay of removal in this petition is DISMISSED as moot.

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




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