ESPINAL CRUZ v. ROSEN (2021)

United States Court of Appeals, Second Circuit.

Carmen Suyapa ESPINAL-CRUZ, Jonathan Josue Espinal-Cruz, Darwin Eduardo Urbina-Espinal Petitioners, v. Jeffrey A. ROSEN, Acting United States Attorney General, Respondent.1

19-1

Decided: January 05, 2021

PRESENT: JON O. NEWMAN, ROBERT A. KATZMANN, JOSEPH F. BIANCO, Circuit Judges. FOR PETITIONERS: Raymond G. Lahoud, Esq., Norris Mclaughlin, P.A., Allentown, PA. FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Margot L. Carter, Senior Litigation Counsel; Aaron D. Nelson, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

SUMMARY ORDER

Petitioners Carmen Suyapa Espinal-Cruz, Jonathan Josue Espinal-Cruz, and Darwin Eduardo Urbina-Espinal, natives and citizens of Honduras, seek review of a December 4, 2018, decision of the BIA denying their motion to reopen. See In re Carmen Suyapa Espinal-Cruz, et al., Nos. A XXX XX8 207/208/209 (B.I.A. Dec. 4, 2018). We assume the parties’ familiarity with the underlying facts and procedural history.

We review the BIA'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). It is undisputed that Petitioners’ motion to reopen was untimely and number barred, as it was their second motion to reopen and they filed it nine years after the BIA's final administrative decision. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). There is an exception to these limitations if the motion is filed to seek 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 proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). Furthermore, such new and material evidence must support the movant's prima facie eligibility for asylum and withholding of removal. See INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); see also Singh v. Mukasey, 536 F.3d 149, 154-55 (2d Cir. 2008).

We hold that the BIA did not abuse its discretion by denying reopening because Petitioners failed to establish their prima facie eligibility for asylum and withholding of removal. An increase in gang violence in Honduras, as Petitioners’ proffered evidence purportedly shows, is not material because Petitioners did not establish a nexus between their fear of gangs and a protected ground. See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 74 (2d Cir. 2007) (rejecting claim based on perceived wealth); Melgar de Torres v. Reno, 191 F.3d 307, 313–14 (2d Cir. 1999) (holding that “an act of random violence” and “general crime conditions” cannot support asylum claim). To the extent that Espinal-Cruz argues that she would be targeted on account of her membership in a particular social group of single women without male protection, she did not argue this point before the BIA, and therefore it is not properly before us. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (holding that generally petitioner must exhaust issues before the BIA).

Lastly, we decline to reach Petitioners’ claim under the Convention Against Torture, which was not argued in their motion to reopen or raised in their opening brief in this Court. See id.; Patterson v. Balsamico, 440 F.3d 104, 113 n.5 (2d Cir. 2006) (“This Court generally will not consider arguments raised for the first time in a reply brief.”).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.