17-3778 (L) Reyes Alvarez v. Barr BIA A088 186 365 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of December, two thousand twenty.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, PIERRE N. LEVAL, STEVEN J. MENASHI, Circuit Judges. _____________________________________
MARCO ANTONIO REYES ALVAREZ, Petitioner,
v. 17-3778 (L), 18-269 (Con) NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Erin O’Neil-Baker, Esq. Hartford, CT.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Kohsei Ugumori, Senior Litigation Counsel; Nehal H. Kamani, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Marco Antonio Reyes Alvarez, a native and
citizen of Ecuador, seeks review of two BIA decisions: an
August 7, 2017 decision denying a stay of removal, and a
January 8, 2018 decision denying his motion to reopen. In
re Marco Antonio Reyes Alvarez, No. A 088 186 365 (B.I.A. Aug.
7, 2017); In re Marco Antonio Reyes Alvarez, No. A 088 186
365 (B.I.A. Jan. 8, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
We review the agency’s denial of a motion to reopen for
abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 168–69 (2d Cir. 2008). “An abuse of discretion may be
found in those circumstances where the [BIA’s] decision
provides no rational explanation, inexplicably departs from
established policies, is devoid of any reasoning, or contains
only summary or conclusory statements; that is to say, where
the [BIA] has acted in an arbitrary or capricious manner.”
2 Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d
Cir. 2001) (internal citations omitted).
An alien seeking to reopen proceedings may file only one
motion to reopen no later than 90 days after the date on which
the final administrative decision was rendered. 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Reyes
Alvarez’s August 2017 motion was untimely because he filed it
approximately seven years after the BIA dismissed his appeal
in May 2010. However, the time limitation does not apply if
reopening is sought to apply for asylum “based on changed
country conditions arising in the country of nationality or
the country to which removal has been ordered, if such
evidence is material and was not available and would not have
been discovered or presented at the previous proceeding.”
8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii). Further, to obtain reopening, “the
movant must . . . establish prima facie eligibility for
asylum, i.e., a realistic chance that he will be able to
establish eligibility.” Poradisova v. Gonzales, 420 F.3d 70,
78 (2d Cir. 2005) (internal quotation marks omitted); see
also Jian Hui Shao, 546 F.3d at 168. The agency did not
abuse its discretion when it denied reopening because Reyes
Alvarez did not demonstrate that the police are unable or 3 unwilling to control the man he fears in Ecuador, which
precludes him from establishing prima facie eligibility for
relief.
To be eligible for asylum, an applicant must demonstrate
that he has been persecuted or fears persecution by the
government of a country or by persons or an organization that
the government is unable or unwilling to control. See 8
U.S.C. § 1101(a)(42); Ivanishvili v. U.S. Dep’t of
Justice, 433 F.3d 332, 342 (2d Cir. 2006); Rizal v. Gonzales,
442 F.3d 84, 92 (2d Cir. 2006) (“[P]ersecution can certainly
be found when the government, although not itself conducting
the persecution, is unable or unwilling to control it[.]”);
Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985).
The agency determined that Reyes Alvarez “has not shown that
the government of Ecuador would be unable or unwilling to
protect him from the individual who killed his wife’s
relative, especially as that individual was successfully
prosecuted and imprisoned for murder.”
Reyes Alvarez failed to challenge this dispositive
finding in his brief and has thus waived review of the issue.
See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7
(2d Cir. 2005) (petitioner abandons issues and claims not
raised in his brief); see also INS v. Abudu, 485 U.S. 94, 4 104–05 (1988) (agency may deny an untimely motion to reopen
for failure to demonstrate materially changed country
conditions or prima facie eligibility for the underlying
substantive relief sought).
Waiver aside, the record supports the agency’s conclusion
as to whether the government could and would be able to
protect Reyes Alvarez. The man Reyes Alvarez and his family
fear, Rodrigo Loza, was arrested and prosecuted for murdering
Reyes Alvarez’s brother-in-law in 2004; this indicates the
Ecuadorian police are willing to investigate crimes and
enforce laws. Reyes Alvarez claims in his affidavit that the
police will not arrest Loza for the more recent threats
against his family, and that the police told his niece Gladys
“that there was nothing to be done to protect her and that
they could only act if [Loza] actually harmed her or her
family members.” But Gladys, who experienced these alleged
threats firsthand, did not mention any of this in her
affidavit.
Reyes Alvarez also submitted the 2015 State Department
Human Rights Report for Ecuador and the 2017 State Department
Crime and Safety Report for Ecuador to support his claim, but
those reports contain only generalized accounts of police
corruption, high crime rates, and police ineffectiveness, 5 which, without more, do not demonstrate that the police would
be unable or unwilling to protect Reyes Alvarez. See Mu
Xiang Lin v. U.S.
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17-3778 (L) Reyes Alvarez v. Barr BIA A088 186 365 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of December, two thousand twenty.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, PIERRE N. LEVAL, STEVEN J. MENASHI, Circuit Judges. _____________________________________
MARCO ANTONIO REYES ALVAREZ, Petitioner,
v. 17-3778 (L), 18-269 (Con) NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Erin O’Neil-Baker, Esq. Hartford, CT.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Kohsei Ugumori, Senior Litigation Counsel; Nehal H. Kamani, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Marco Antonio Reyes Alvarez, a native and
citizen of Ecuador, seeks review of two BIA decisions: an
August 7, 2017 decision denying a stay of removal, and a
January 8, 2018 decision denying his motion to reopen. In
re Marco Antonio Reyes Alvarez, No. A 088 186 365 (B.I.A. Aug.
7, 2017); In re Marco Antonio Reyes Alvarez, No. A 088 186
365 (B.I.A. Jan. 8, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
We review the agency’s denial of a motion to reopen for
abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 168–69 (2d Cir. 2008). “An abuse of discretion may be
found in those circumstances where the [BIA’s] decision
provides no rational explanation, inexplicably departs from
established policies, is devoid of any reasoning, or contains
only summary or conclusory statements; that is to say, where
the [BIA] has acted in an arbitrary or capricious manner.”
2 Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d
Cir. 2001) (internal citations omitted).
An alien seeking to reopen proceedings may file only one
motion to reopen no later than 90 days after the date on which
the final administrative decision was rendered. 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Reyes
Alvarez’s August 2017 motion was untimely because he filed it
approximately seven years after the BIA dismissed his appeal
in May 2010. However, the time limitation does not apply if
reopening is sought to apply for asylum “based on changed
country conditions arising in the country of nationality or
the country to which removal has been ordered, if such
evidence is material and was not available and would not have
been discovered or presented at the previous proceeding.”
8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii). Further, to obtain reopening, “the
movant must . . . establish prima facie eligibility for
asylum, i.e., a realistic chance that he will be able to
establish eligibility.” Poradisova v. Gonzales, 420 F.3d 70,
78 (2d Cir. 2005) (internal quotation marks omitted); see
also Jian Hui Shao, 546 F.3d at 168. The agency did not
abuse its discretion when it denied reopening because Reyes
Alvarez did not demonstrate that the police are unable or 3 unwilling to control the man he fears in Ecuador, which
precludes him from establishing prima facie eligibility for
relief.
To be eligible for asylum, an applicant must demonstrate
that he has been persecuted or fears persecution by the
government of a country or by persons or an organization that
the government is unable or unwilling to control. See 8
U.S.C. § 1101(a)(42); Ivanishvili v. U.S. Dep’t of
Justice, 433 F.3d 332, 342 (2d Cir. 2006); Rizal v. Gonzales,
442 F.3d 84, 92 (2d Cir. 2006) (“[P]ersecution can certainly
be found when the government, although not itself conducting
the persecution, is unable or unwilling to control it[.]”);
Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985).
The agency determined that Reyes Alvarez “has not shown that
the government of Ecuador would be unable or unwilling to
protect him from the individual who killed his wife’s
relative, especially as that individual was successfully
prosecuted and imprisoned for murder.”
Reyes Alvarez failed to challenge this dispositive
finding in his brief and has thus waived review of the issue.
See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7
(2d Cir. 2005) (petitioner abandons issues and claims not
raised in his brief); see also INS v. Abudu, 485 U.S. 94, 4 104–05 (1988) (agency may deny an untimely motion to reopen
for failure to demonstrate materially changed country
conditions or prima facie eligibility for the underlying
substantive relief sought).
Waiver aside, the record supports the agency’s conclusion
as to whether the government could and would be able to
protect Reyes Alvarez. The man Reyes Alvarez and his family
fear, Rodrigo Loza, was arrested and prosecuted for murdering
Reyes Alvarez’s brother-in-law in 2004; this indicates the
Ecuadorian police are willing to investigate crimes and
enforce laws. Reyes Alvarez claims in his affidavit that the
police will not arrest Loza for the more recent threats
against his family, and that the police told his niece Gladys
“that there was nothing to be done to protect her and that
they could only act if [Loza] actually harmed her or her
family members.” But Gladys, who experienced these alleged
threats firsthand, did not mention any of this in her
affidavit.
Reyes Alvarez also submitted the 2015 State Department
Human Rights Report for Ecuador and the 2017 State Department
Crime and Safety Report for Ecuador to support his claim, but
those reports contain only generalized accounts of police
corruption, high crime rates, and police ineffectiveness, 5 which, without more, do not demonstrate that the police would
be unable or unwilling to protect Reyes Alvarez. See Mu
Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d
Cir. 2005) (requiring “particularized evidence” beyond
general country conditions to support a claim). Further, the
2015 State Department report indicates that “[t]he law
provides penalties for physical violence, psychological
violence, and sexual violence” against women, and while
investigations could be delayed and not many accused
perpetrators are ultimately sentenced, “there were 30
judicial units with 82 judges specialized in domestic
violence problems.”
Accordingly, because the record does not demonstrate that
the police would be unable or unwilling to protect Reyes
Alvarez, the agency did not abuse its discretion in denying
reopening. See Jian Hui Shao, 546 F.3d at 168–69; Abudu, 485
U.S. 94, 104–05. This finding is dispositive of all of Reyes
Alvarez’s claims because his failure to meet the burden for
asylum necessarily means that he was unable to meet the higher
likelihood of harm required for withholding and CAT. See
Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010). Given
the dispositive nature of the BIA’s finding of the
Ecuadorian’s government’s ability to protect Reyes Alvarez, 6 we need not address the BIA’s alternative findings as to
changed country conditions and whether his familial
particular social group is cognizable. See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach.”).
Because the agency properly denied Reyes Alvarez’s motion
to reopen, his lead petition for review concerning the BIA’s
denial of his stay motion is now moot.
For the foregoing reasons, the consolidated petition for
review challenging the denial of the motion to reopen (17-
3778) is DENIED, and the lead petition for review challenging
the denial of a stay (18-269) is DENIED as moot. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court