Molina-Hernandez v. Sessions
687 F. App'x 115
| 2d Cir. | 2017Background
- Petitioner Walter Giovanni Molina-Hernandez, a Salvadoran national, sought asylum, withholding of removal, and CAT protection based on a 2005 gang attack and alleged membership in Generation 21 (an anti-gang youth group).
- The IJ denied relief in July 2014; the BIA affirmed in September 2015. Molina-Hernandez petitioned for review in the Second Circuit.
- The Government moved for summary denial; the court treated that motion as a response to Molina-Hernandez’s merits brief and proceeded to review the merits.
- The agency found the asylum application untimely (a factual finding the court largely lacks jurisdiction to review), but considered merits of the claims nonetheless.
- The agency concluded Molina-Hernandez failed to show the 2005 attack was motivated by a protected ground (e.g., political opinion or membership in a particular social group) and denied CAT relief because torture was not more likely than not.
Issues
| Issue | Molina-Hernandez's Argument | Sessions' Argument | Held |
|---|---|---|---|
| Jurisdiction to review agency’s factual timeliness finding | Challenges timeliness ruling implicitly by arguing changed circumstances and merits | Agency factual finding on untimely asylum is not reviewable except for constitutional or legal questions | Court lacks jurisdiction to review factual determination of untimeliness; declines to reach changed-circumstances question because claim fails on merits |
| Nexus for asylum/withholding (protected-ground nexus) | Attack stemmed from his membership in Generation 21, an anti-gang group, or imputed political opinion | Attack was a non-protected motive (personal dispute / cousin’s tattoos); petitioner failed to show attackers knew of or targeted him for Generation 21 membership | Agency reasonably found no showing that protected ground was at least one central reason for the attack; claim denied |
| Particular social group theory (Generation 21) | Generation 21 constitutes a visible, particular social group and membership shows persecution risk | Even if group qualifies, petitioner failed to show membership was a central reason for attack | Court accepted that group might meet group criteria but affirmed denial for lack of nexus to the attack |
| CAT (likelihood of torture) | Prior attack, alleged death threat, and country conditions show more-likely-than-not risk of torture on return | Single decade-old attack, no ongoing targeting, and insufficient evidence government will torture him more likely than not | Agency reasonably denied CAT relief; petitioner did not show torture more likely than not |
Key Cases Cited
- Pillay v. INS, 45 F.3d 14 (2d Cir. 1995) (summary denial warranted only if petition frivolous)
- Weinong Ling v. Holder, 763 F.3d 244 (2d Cir. 2014) (limitations on review of asylum timeliness factual findings)
- Uwais v. U.S. Att’y Gen., 478 F.3d 513 (2d Cir. 2007) (asylum nexus need not be shown with absolute certainty; harm must be motivated at least in part by a protected ground)
- Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) (CAT requires showing torture is more likely than not)