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 

New York, on the 18th 4 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 
2

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 
3

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 
4

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 
5

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 well20 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 
6

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