     16-3316
     Traore v. Sessions
                                                                                   BIA
                                                                            Montante, IJ
                                                                           A093 431 698
                               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 18th day of December, two thousand
 5   seventeen.
 6
 7   PRESENT:
 8            ROBERT A. KATZMANN,
 9                 Chief Judge,
10            ROBERT D. SACK,
11            RICHARD C. WESLEY,
12                 Circuit Judges.
13   _____________________________________
14
15   BOUBACAR EL HADJI TRAORE, AKA
16   BABACAR TRAORE,
17            Petitioner,
18
19                        v.                                     16-3316
20                                                               NAC
21   JEFFERSON B. SESSIONS, III,
22   UNITED STATES ATTORNEY GENERAL,
23            Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                      Anne E. Doebler, Buffalo, NY.
27
28   FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
29                                        Attorney General; M. Jocelyn Lopez
30                                        Wright, Senior Litigation Counsel;
31                                        Melissa K. Lott, Trial Attorney,
32                                        Office of Immigration Litigation,
33                                        United States Department of
 1                               Justice, Washington, DC.
 2          UPON DUE CONSIDERATION of this petition for review of a

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

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

 5   is DISMISSED in part and in part DENIED.

 6          Petitioner Boubacar El Hadji Traore, a native and citizen

 7   of Senegal, seeks review of an August 31, 2016, decision of

 8   the BIA affirming a May 6, 2015, decision of an Immigration

 9   Judge    (“IJ”)     denying     Traore’s       application     for    asylum,

10   withholding    of    removal,    and       relief    under   the   Convention

11   Against Torture (“CAT”).         In re Boubacar El Hadji Traore, No.

12   A 093 431 698 (B.I.A. Aug. 31, 2016), aff’g No. A 093 431 698

13   (Immig. Ct. Buffalo May 6, 2015).                   We assume the parties’

14   familiarity with the underlying facts and procedural history

15   in this case.

16          We have reviewed both the BIA’s and IJ’s decisions “for

17   the sake of completeness.”          Wangchuck v. Dep’t of Homeland

18   Sec., 448 F.3d 524, 528 (2d Cir. 2006).                   The standards of

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

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

21     I.     Time Bar Ruling

22          An asylum applicant must demonstrate “by clear and

23   convincing evidence that the application has been filed

24   within 1 year after the date of the alien’s arrival in the
                                            2
1    United States,” or must demonstrate “either the existence

2    of changed circumstances which materially affect the

3    applicant’s eligibility or extraordinary circumstances

4    relating to the delay in filing an application.”   8 U.S.C.

5    § 1158(a)(2)(B), (D).   Our jurisdiction to review the

 6   agency’s finding that an application is untimely, and that

 7   neither changed nor extraordinary circumstances excuse the

 8   untimeliness, is limited to “constitutional claims or

 9   questions of law.”   Id. §§ 1158(a)(3), 1252(a)(2)(D).   No

10   such question is implicated here because the IJ considered

11   Traore’s explanation that he believed he was listed on his

12   wife’s application, but found that it was not an

13   extraordinary circumstance sufficient to explain a ten-year

14   delay.   We dismiss the petition as to asylum because Traore

15   merely challenges the IJ’s factual determinations, which we

16   lack jurisdiction to review.   See Joaquin-Porras v.

17   Gonzales, 435 F.3d 172, 178-80 (2d Cir. 2006).

18     II. Merits

19       The BIA did not err in denying withholding of removal.

20   Traore claimed that members of the Movement of Democratic

21   Forces of Casamance (“MDFC”) threatened to kill him if he

22   did not act as an informant, on account of his affiliation

23   with the Socialist Party.   To qualify for withholding of

                                    3
 1   removal, an applicant must establish that his “life or

 2   freedom would be threatened” in the country of removal on

 3   one of five statutory grounds: “race, religion,

 4   nationality, membership in a particular social group, or

 5   political opinion.”     8 U.S.C. § 1231(b)(3)(A); see 8 C.F.R.

 6   § 1208.16(b); Ramsameachire v. Ashcroft, 357 F.3d 169, 178

 7   (2d Cir. 2004).     Past persecution carries a presumption of

 8   future persecution.     Ivanishvili v. U.S. Dep't of Justice,

 9   433 F.3d 332, 339 (2d Cir. 2006).             Otherwise, it is the

10   applicant’s burden to show “that it is more likely than

11   not” that he “would be persecuted.”            8 C.F.R.

12   § 1208.16(b)(2); see Melgar de Torres v. Reno, 191 F.3d

13   307, 311 (2d Cir. 1999).     The applicant’s fear must be

14   objectively reasonable.      Ramsameachire, 357 F.3d at 178.

15       The BIA did not err in finding that Traore failed to

16   establish   his    eligibility   for    asylum     and    withholding   of

17   removal insofar as those claims were based on the threatening

18   actions of MDFC members.      As the BIA concluded, the members’

19   single threat to harm Traore if he did not agree to serve as

20   their   government      informant       did     not   constitute     past

21   persecution.      See Gui Ci Pan v. U.S. Att’y General, 449 F.3d

22   408, 412-13 (2d Cir. 2006) (recognizing that unfulfilled

23   threats alone do not constitute persecution); Edimo-Doualla

                                         4
1    v. Gonzales, 464 F.3d 276, 283 (2d Cir. 2006) (finding that

2    applicant must show more than harassment); Guan Shan Liao v.

3    U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (stating

4    that a “threat of detention . . . itself . . . is not past

5    persecution”).

6           The BIA did not err in finding that Traore failed to

7    establish a well-founded fear of future persecution because

8    he did not prove that his fear was objectively reasonable.

 9   8 C.F.R. § 1208.13(b)(2)(i); Ramsameachire, 357 F.3d at

10   178.    He conceded that he had no proof that MDFC members

11   would recognize him if he returned to Senegal.                After

12   coming to the United States in 2000, Traore returned to

13   Senegal for months at a time without incident.                See Kone v.

14   Holder, 596 F.3d 141, 150-51 (2d Cir. 2010).              And Traore’s

15   family members, including his mother, who was also

16   affiliated with the Socialist Party, remained unharmed in

17   Senegal.    See Melgar de Torres, 191 F.3d at 313 (noting

18   that the absence of harm to similarly situated family

19   members in the country weighs against finding a well-

20   founded fear of persecution).

21          Because   Traore’s   claims       were   all   based   on   the   same

22   factual predicate, his failure to establish an objective fear

23   of harm is dispositive of withholding of removal and CAT

                                          5
 1   relief.   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

 2   2006).

 3       For the foregoing reasons, the petition for review is

 4   DISMISSED for lack of jurisdiction with respect to asylum,

 5   and DENIED in remaining part with respect to withholding of

 6   removal and CAT relief.   As we have completed our review, any

 7   stay of removal that the Court previously granted in this

 8   petition is VACATED, and any pending motion for a stay of

 9   removal in this petition is DISMISSED as moot.    Any pending

10   request for oral argument in this petition is DENIED in

11   accordance with Federal Rule of Appellate Procedure 34(a)(2),

12   and Second Circuit Local Rule 34.1(b).

13                                FOR THE COURT:
14                                Catherine O’Hagan Wolfe, Clerk




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