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
6