13-1291

Can v. Holder

BIA

Vomacka, IJ

A089 082 405

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 United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 16th 4 day of April, two thousand fifteen.

5

6 PRESENT:

7 DENNIS JACOBS,

8 PETER W. HALL,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 DANILO NIJ CAN, AKA DANILO CAN, AKA

14 DANICO NIJCAN, AKA DANILO NIJ,

15 Petitioner,

16

17 v. 13-1291

18 NAC

19 ERIC H. HOLDER, JR., UNITED

20 STATES

21 ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________

24

25 FOR PETITIONER: James Bouklas, Bouklas Gaylord

26 LLP, Syosset, New York.

27

28 FOR RESPONDENT: Stuart F. Delery, Assistant

29 Attorney General; William C.
1 Peachey, Assistant Director;

2 Rebecca Hoffberg Phillips, Trial

3 Attorney, Office of Immigration

4 Litigation, Washington, D.C.

5

6 UPON DUE CONSIDERATION of this petition for review of a

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

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

9 is DISMISSED as to asylum, and DENIED in all other respects.

10 Petitioner Danilo Nij Can, a native and citizen of

11 Guatemala, seeks review of a March 13, 2013, decision of the

12 BIA affirming an August 12, 2011, decision of an Immigration

13 Judge (“IJ”) denying Can’s application for asylum,

14 withholding of removal, and relief under the Convention

15 Against Torture (“CAT”). In re Nij Can, No. A089 082 405

16 (B.I.A. Mar. 13, 2013), aff’g No. A089 082 405 (Immig. Ct.

17 N.Y. City Aug. 12, 2011). We assume the parties’

18 familiarity with the underlying facts and procedural history

19 in this case.

20 Under the circumstances of this case, we have

21 considered “both the IJ’s and the BIA’s opinions ‘for the

22 sake of completeness.’” Zaman v. Mukasey, 514 F.3d 233, 237

23 (2d Cir. 2008) (per curiam) (quoting Wangchuck v. DHS, 448

2
1 F.3d 524, 528 (2d Cir. 2006)). The applicable standards of

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

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

4 Because Can has not challenged the denial of CAT relief, we

5 address only the agency’s rulings regarding asylum and

6 withholding of removal. See Yueqing Zhang v. Gonzales, 426

7 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

8 I. Pretermission of Asylum

9 An asylum applicant must demonstrate “by clear and

10 convincing evidence that the application has been filed

11 within 1 year after the date of the alien’s arrival in the

12 United States,” unless, in relevant part, the applicant

13 establishes “changed circumstances which materially affect

14 the applicant’s eligibility” for asylum. 8 U.S.C.

15 § 1158(a)(2)(B), (D). Our jurisdiction to review an

16 agency’s determination regarding the timeliness of an asylum

17 application is limited to constitutional claims and

18 questions of law. 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D);

19 see also Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 285 (2d

20 Cir. 2009). Here, we lack jurisdiction to review Can’s

21 challenge to the agency’s pretermission of asylum because he

3
1 disputes only the correctness of the agency’s factual

2 determination that his brother’s murder was not a changed

3 circumstance, whereas his application was based on alleged

4 incidents of persecution that predated the murder. See Xiao

5 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

6 2006).

7 II. Withholding of Removal—Nexus Finding

8 An alien is eligible for withholding of removal if it

9 is more likely than not that his “life or freedom would be

10 threatened in [the country of removal] because of [his]

11 race, religion, nationality, membership in a particular

12 social group, or political opinion.” 8 U.S.C.

13 § 1231(b)(3)(A); see also Castro v. Holder, 597 F.3d 93, 100

14 (2d Cir. 2010). We confine our review to the ground that

15 Can raises in his brief: that he suffered and fears

16 persecution because of his political opinion, defined as

17 neutrality in response to gangs’ threats and extortion. See

18 Yueqing Zhang, 426 F.3d at 541 n.1.

19 The agency reasonably concluded that Can failed to

20 establish a nexus to a protected ground. To establish

21 persecution because of political opinion, Can was required

4
1 to demonstrate that gangs were motivated, at least in part,

2 by their perception of Can’s political opinion. Id. at 545. 

3 No evidence shows that the armed individuals threatened him

4 for any reason other than pecuniary gain, let alone because

5 of his political opinion or another protected ground. Cf.

6 INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992). While he

7 testified that tried to resist giving in to the extortion,

8 he did not show that he did so to express a political

9 opinion. Further, he did not testify that he was involved

10 in political activity or perceived to have a political

11 opinion. To the contrary, he testified that he was targeted

12 when he might have money, such as at a bank or restaurant. 

13 However, “persecution must be on account of an enumerated

14 ground set forth in the Act, and general crime conditions

15 are not a stated ground.” Melgar de Torres v. Reno, 191

16 F.3d 307, 314 (2d Cir. 1999); see also Ucelo-Gomez v.

17 Mukasey, 509 F.3d 70, 73-74 (2d Cir. 2007) (per curiam)

18 (affirming BIA’s holding that “harm motivated purely by

19 wealth is not persecution”). Accordingly, the agency did

20 not err in finding that he failed to establish a nexus to a

21 protected ground. Elias-Zacarias, 502 U.S. at 481 n.1.

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

2 DISMISSED as to asylum and DENIED in all other respects. As

3 we have completed our review, any stay of removal that the

4 Court previously granted in this petition is VACATED, and

5 any pending motion for a stay of removal in this petition is

6 DISMISSED as moot. Any pending request for oral argument in

7 this petition is DENIED in accordance with Federal Rule of

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

9 34.1(b).

10 FOR THE COURT: 

11 Catherine O’Hagan Wolfe, Clerk

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