Cruz-Hernandez v. Garland

20-358 Cruz-Hernandez v. Garland BIA A206 079 093 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 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 2nd day of December, two thousand twenty- two. PRESENT: RICHARD C. WESLEY, JOSEPH F. BIANCO, ALISON J. NATHAN, Circuit Judges. _____________________________________ RONALD CRUZ-HERNANDEZ, AKA OMAR OTTONIEL ASENCIO-GONZALEZ, Petitioner, v. 20-358 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Robert F. Graziano, Esq., Buffalo, NY. FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Shelley R. Goad, Assistant Director; Kristin Moresi, 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 Ronald Cruz-Hernandez, a native and citizen of Guatemala, seeks review of a December 27, 2019 decision of the BIA denying his motion to reopen his removal proceedings. In re Ronald Cruz-Hernandez, No. A206 079 093 (B.I.A. Dec. 27, 2019). We assume the parties’ familiarity with the underlying facts and procedural history. Our review is limited to the BIA’s denial of reopening because Cruz-Hernandez timely petitioned for review of only that decision. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89–90 (2d Cir. 2001). We review the denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). “An abuse of discretion may be found . . . where the Board’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary 2 or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Ke Zhen Zhao, 265 F.3d at 93 (internal citations omitted). The BIA did not abuse its discretion in denying the motion to reopen because Cruz-Hernandez did not establish prima facie eligibility for any relief. See INS v. Abudu, 485 U.S. 94, 104 (1988) (noting that failure to establish prima facie eligibility is an “independent ground[] on which the BIA may deny a motion to reopen”). An asylum applicant must show that he suffered past persecution, or has a well-founded fear of persecution and that “race, religion, nationality, membership in a particular …

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