Ham-Pena v. Barr

Opinion

18-3159 Ham-Pena v. Barr BIA

A097 396 681

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 8th day of September, two thousand twenty. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 CARLOS ALBERTO HAM-PENA, 14 Petitioner, 15 16 v. 18-3159 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Glenn L. Formica, New Haven, CT. 24 25 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 26 Attorney General; Cindy S. 27 Ferrier, Assistant Director; 28 Victoria M. Braga, Trial Attorney, 29 Office of Immigration Litigation,

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1 United States Department of 2 Justice, Washington, DC.

3 UPON DUE CONSIDERATION of this petition for review of a 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petition for review 6 is DENIED. 7 Petitioner Carlos Alberto Ham-Pena, a native and citizen 8 of Honduras, seeks review of a September 28, 2018 decision of 9 the BIA denying his motion to reopen his removal proceedings. 10 In re Carlos Alberto Ham-Pena, No. A 097 396 681 (B.I.A. Sept. 11 28, 2018). We assume the parties’ familiarity with the 12 underlying facts and procedural history. 13 We have reviewed the BIA’s denial of the motion to reopen 14 for abuse of discretion and considered whether its conclusion 15 regarding changed country conditions is supported by 16 substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 17 138, 168–69 (2d Cir. 2008). Ham-Pena moved to reopen in 18 order to apply for asylum, withholding of removal, and relief 19 under the Convention Against Torture, asserting that a 20 worsening political situation in Honduras and the attempted 21 murder of his brother, a politician, excused the untimely 22 filing of his motion. We find no abuse of discretion.

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1 It is undisputed that Ham-Pena’s motion was untimely 2 because Ham-Pena filed it more than three years after the 3 BIA’s 2014 decision affirming his removal order. See 8 4 U.S.C. § 1229a(c)(7)(C)(i) (90-day deadline for motions to 5 reopen); 8 C.F.R. § 1003.2(c)(2) (same). However, the time 6 limitation for filing a motion to reopen does not apply if 7 reopening is sought to apply for asylum and the motion “is 8 based on changed country conditions arising in the country of 9 nationality or the country to which removal has been ordered, 10 if such evidence is material and was not available and would 11 not have been discovered or presented at the previous 12 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 13 C.F.R. § 1003.2(c)(3)(ii). The agency did not err in finding 14 that Ham-Pena failed to demonstrate such conditions. 15 “In determining whether evidence accompanying a motion 16 to reopen demonstrates a material change in country 17 conditions that would justify reopening, [the agency] 18 compare[s] the evidence of country conditions submitted with 19 the motion to those that existed at the time of the merits 20 hearing below.” In re S-Y-G-, 24 I. & N. Dec. 247, 253 21 (B.I.A. 2007). As the BIA noted, the evidence that Ham-Pena

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1 presented with his motion to reopen described political 2 unrest and instances of politically motivated killings 3 similar to the tumultuous political situation that existed at 4 the time of his original hearing. Similarly, Ham-Pena 5 presented evidence that there had been additional threats on 6 his brother’s life, that his brother and his wife received 7 special protection and were forced to leave Honduras, and 8 that any special protection provided by the government would 9 not extend to Ham-Pena. These conditions existed at the time 10 of his original hearing and do not reflect that Ham-Pena 11 himself will be targeted as required to state a claim for 12 relief from removal. See Tiao Jiang v. Gonzales, 500 F.3d 13 137, 141 (2d Cir. 2007) (“As a general principle, an asylum 14 applicant cannot claim past persecution based solely on harm 15 that was inflicted on a family member on account of that 16 family member’s political opinion or other protected 17 characteristic.”); In re S-Y-G-, 24 I. & N. Dec. at 253 18 (assessing changed conditions evidence “to determine whether 19 the applicant has made a prima facie showing . . . [of] a 20 well-founded fear of persecution”). Accordingly, the BIA did 21 not abuse its discretion in denying the motion as untimely

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1 because Ham-Pena did not demonstrate a sufficient change in 2 conditions in Honduras or one that was material to his 3 requested relief. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii). 4 For the foregoing reasons, the petition for review is 5 DENIED. All pending motions and applications are DENIED and 6 stays VACATED.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court