16

- 3316 Traore v. Sessions BIA Montante , IJ A 093 431 698 

### 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 CO**  **URT, 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall**  2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 18**  **th da**  **y of December**  **, two thousand** 4
**s even**  **tee n.**  5 6 **PRESENT:** 7 **ROBERT A. KATZMANN,**  8 **Chief Judge,** 9 **ROBERT D. SACK,** 10 **RICHARD C. WESLEY,** 11 **Circuit Judges.** 12

**_____________________________________** 13 14 **BOUBACAR EL HADJI TRAORE, A KA**  15 **BABACAR TRAORE ,**  16 **Petitioner ,**  17 18

**v.** 16
- 3316 19 **NAC** 20 **JEFFERSON B. SESSIONS, III,** 21 **UNITED STATES ATTORNEY GENERAL**  **,** 22 **Respondent .**  23

**_____________________________________** 24 25 **FOR PETITIONER :**  Anne E. Doebler , Buffalo , NY

. 26 27 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 28 Attorney General ; M. Jocelyn Lopez 29 Wright , Senior Litigation Counsel ; 30 Melissa K. Lott , Trial Attorney, 31 Office of Immigration Litigation , 32 United States Department of 332 Justice, Washington, D C. 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 DECREE D that the petitio n for review 4

is DISMISSED in part and in part DENIED

. 5

Petitioner Boubacar El Hadji Traore , a native and citizen 6

of Senegal , seeks review of a n August 31, 2016 , decision of 7
the BIA affirming a May 6, 2015 , decision of an Immigration 8
Judge (“IJ”) denying Traore ’s application for asylum, 9
withholding of removal , and relief under the Convention 10
Against Torture (“CAT”). In re Boubacar El Hadji Traore , No. 11

A 093 431 698 (B.I.A. Aug. 31, 2016 ), aff’g No. A 093 4 31 698 12
(Immig. Ct. Buffalo May 6, 2015 ). We assume the parties’ 13
familiarity with the underlying facts and procedural history 14

in this case. 15

We have review ed both the BIA’s and IJ’s decisions “for 16
the sake of completeness

. ” Wangchuck v. Dep’t of Homeland 17

Sec. , 448 F.3d 524, 528 (2d Cir. 2006)

. The standards of 18

review are well established. See 8 U.S.C. § 1252(b)(4)(B); 19
Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). 20

**I. Time Bar Ruling**  21
An asylum applicant must demonstrate “by clear and 22
convincing evidence that the application has been filed 23
within 1 year after the date of the alien’s arrival in the 243 United States,” or must demonstrate “either the existence 1
of changed circumstances which m aterially affect the 2
applicant’s eligibility or extraordinary circumstances 3
relating to the delay in filing an application.” 8 U.S.C. 4

§ 1158(a)(2)(B), (D). Our jurisdiction to review the 5
agency’s finding that an application is untimely , and that 6

neither changed nor extraordinary circumstances excus e the 7

untimeliness , is limited to “ constitutional claims or 8
questions of law.” Id . § § 1158(a)(3), 1252(a)(2)(D). No 9
such question is implicated here because the IJ considered 10
Traore’s explanation that he believed he was listed on his 11
wife’s application, but found that it was not an 12

ex traordinary circumstance suffic ient to explain a ten

- year 13

dela y . We dismiss the petition as to asylum because Traore 14
merely challenges the IJ’s factual determinations, which we 15

lack jurisdiction to review. See Joaquin

- Porras v. 16

Gonzales , 435 F.3d 172, 178

- 80 (2d Cir. 2006). 17

**II. Merits**  18

T he BIA did not err in denyin g withholding of removal

. 19

Traore claimed that members of the Movement of Democratic 20

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

did not act as an informant , on account of his affiliation 22
with the Socialist Party

. To qualify for withholding of 234 removal, an applicant must establish that his “life or 1
freedom would be threatened” in the country of removal o n 2
one of five statutory grounds: “race, religion, 3
nationality, membership in a particular social group, or 4
political opinion.” 8 U.S.C. § 1231(b)(3)(A); see 8 C.F.R. 5

§ 1 208.16(b); Ramsameachire v. Ashcroft , 357 F.3d 169, 178 6
(2d Cir. 2004). Past persecution carries a presumption of 7
future persecution. Ivanishvili v. U.S. Dep't of Justice , 8
433 F.3d 332, 339 (2d Cir. 2006). Otherwise, it is the 9
applicant ’s burden to show “that it is more likely than 10
not” that he “would be persecuted. ” 8 C.F.R. 11

§ 1 208.16(b)(2); see Melgar de Torres v. Reno , 191 F.3d 12

307, 31 1 (2d Cir. 1999). The applicant’s fear must be 13
objectively reasonable. Ramsameachire , 357 F.3d at 178. 14

The BIA did not err in finding that Traore failed to 15
establish his eligibility for asyl um and withholding of 16
removal insofar as those claims were based on the threatening 17

actions of MDFC members. As the BIA concluded, the members’ 18
single threat to harm Traore if he did not agree to serve as 19
their government informant did not constitute past 20
persecution. S ee Gui Ci Pan v. U.S. Att’y General , 449 F.3d 21

408, 412

- 13 (2d Cir. 2006) (recognizing that u nfulfilled 22

th reats alone do not constitute persecution ); Edimo

- Doualla 235 v. Gonzales , 464 F.3d 276, 283 (2d Cir. 2006) (finding that 1
applicant must show more than harassment); Guan Shan Liao v. 2
U.S. Dep’t of Justice , 293 F.3d 61, 70 (2d Cir. 2002) (stating 3

that a “threat of detention . . . itself . . . is not past 4
persecution”). 5

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

establish a well

- founded fear of future persecution because 7
he did not prove that his fear was objectively reasonable. 8

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

178 . He conceded that he ha d no proof that MDFC members 10
would recognize him i f he returned to Senegal. After 11
coming to the United States in 2000, Traore returned to 12
Senegal for months at a time without incident. See Kone v. 13

Holder , 596 F.3d 141, 150

- 51 (2d Cir. 2010). And Traore’s 14
family members, including his mother, who was also 15

a ffiliated with the Socialist Party, remained unharmed in 16
Senegal

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

that the absence of harm to similarly situated family 18

members in the country weighs against finding a w ell

19
founded fear of persecution )

. 20

Because Traore’s claims were all based on the same 21
factual predicate, his failure to establish an objective fea r 22

of harm is dispositive of withholding of removal and CAT 236 relief. Paul v. Gonzales , 444 F.3d 148, 15 6

- 5 7 (2d Cir. 1

2006). 2
For the foregoing reasons, the petition for review is 3
DISMISSED for lack of jurisdiction with respect to asylum, 4
and DENIED in remaining part with respect to withholding of 5

removal and CAT relief . As we have completed our review, any 6
stay of removal that the Court previously granted in this 7
petition is VACAT ED, and any pending motion for a stay of 8
removal in this petition is DISMISSED as moot. Any pending 9
request for oral argument in this petition is DENIED in 10
accordance with Federal Rule of Appellate Procedure 34(a)(2), 11
and Second Circuit Local Rule 34.1(b)

. 12

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