Baig v. Sessions , 688 F. App'x 97 ( 2017 )

15-1785
Baig v. Sessions
BIA
Poczter, IJ
A072 218 988
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 25th day of April, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 MIRZA NASIR BAIG, AKA MIRZA ASIF
14 BAIG,
15 Petitioner,
16
17 v. 15-1785
18 NAC
19 JEFFERSON B. SESSIONS III, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Thomas H. Nooter, Freeman, Nooter
25 & Ginsberg, New York, N.Y.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal
28 Deputy Assistant Attorney
29 General; Shelley R. Goad,
30 Assistant Director; Nancy Kwang
1 Canter, Trial Attorney, Office
2 of Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Mirza Nasir Baig, a native and citizen of
11 Pakistan, seeks review of a May 5, 2015, decision of the BIA
12 affirming a September 18, 2013, decision of an Immigration Judge
13 (“IJ”) denying Baig’s motion to terminate proceedings and his
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Mirza
16 Nasir Baig, No. A072 218 988 (B.I.A. May 5, 2015), aff’g No.
17 A072 218 988 (Immig. Ct. N.Y. City Sept. 18, 2013). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 We have reviewed the IJ’s decision as modified and
21 supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
22 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales,
23 417 F.3d 268, 271 (2d Cir. 2005). The BIA declined to rely on
24 the IJ’s findings that Baig’s particular social group was not
2
1 legally cognizable and that Baig did not merit asylum as a matter
2 of discretion; the BIA did determine that Baig suffered no past
3 persecution. The applicable standards of review are well
4 established: we review factual findings for substantial
5 evidence, legal issues de novo, and the denial of a motion to
6 terminate for abuse of discretion. See 8 U.S.C.
7 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
8 Cir. 2009); Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005).
9 I. Motion to Terminate
10 Baig argues that the five-year statute of limitations
11 period of 8 U.S.C. § 1256(a) for rescission of lawful permanent
12 resident (“LPR”) status bars the initiation of his removal
13 proceedings. However, as the Government argues, Baig’s
14 argument is foreclosed by Adams v. Holder, 692 F.3d 91, 101-08
15 (2d Cir. 2012), in which we held that § 1256(a)’s statute of
16 limitations does not apply to removal proceedings.
17 We reject Baig’s assertion that our holding in Adams is not
18 binding because it was “essentially dicta.” Adams held (1)
19 that § 1256(a) does not apply to immigrants who acquire LPR
20 status through consular processing, and (2) that “§ 1256(a)’s
21 limitations period on rescission does not apply to removal.”
22 Id. at 93. We explained that our second holding was consistent
3
1 with “the majority of our sister circuits to have considered
2 the question,” listed id. at 101-02. Our second holding in
3 Adams is not dicta and is binding in this case. Jones v.
4 Coughlin, 45 F.3d 677, 679 (2d Cir. 1995) (“A decision of a panel
5 of this Court is binding unless and until it is overruled by
6 the Court en banc or by the Supreme Court.”) The agency
7 therefore did not abuse its discretion in denying Baig’s motion
8 to terminate.
9 II. Asylum & Related Relief
10 Absent past persecution, an alien may establish
11 eligibility for asylum by demonstrating a well-founded fear of
12 future persecution, which is a “subjective fear that is
13 objectively reasonable.” Dong Zhong Zheng v. Mukasey, 552 F.3d
14 277, 284 (2d Cir. 2009) (internal quotation marks omitted); see
15 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2).
16 The BIA assumed without deciding that Baig had established
17 membership in a particular social group, but affirmed the IJ’s
18 conclusion that Baig had not established an objectively
19 reasonable fear of persecution. As evidence of his fear of
20 persecution, Baig testified that the Taliban in Pakistan mainly
21 targets foreigners and Americans for their money, and that he
22 and his family will be viewed as Americans because they have
4
1 been living in the United States for several years. As
2 evidence, he cited newspapers he read; television reports he
3 watched; what his father told him; the experience of somebody
4 he knew who was killed when he returned to Pakistan from Germany;
5 Baig’s attempted kidnapping at a Pakistani airport in 2006 when
6 two men in civilian clothing stopped him and questioned him (but
7 fled when Baig yelled); the killing of the American wife of his
8 former brother-in-law by two men on motorcycles; a U.S.
9 Department of State travel warning cautioning Americans against
10 traveling to Pakistan; and several news articles describing
11 killings and kidnappings of foreigners in Pakistan.
12 However, the agency explicitly considered this evidence
13 and reasonably concluded that Baig’s fear of future persecution
14 was not objectively reasonable. See Jian Xing Huang v. U.S.
15 INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid
16 support in the record[,] . . . [a] fear [of future persecution]
17 is speculative at best.”); Xiao Ji Chen v. U.S. Dep’t of Justice,
18 471 F.3d 315, 342 (2d Cir. 2006) (observing that the weight
19 accorded to an applicant’s evidence “lie[s] largely within the
20 discretion of the IJ” (internal quotation marks omitted)); see
21 also Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.
22 2008) (“We do not ourselves attempt to resolve conflicts in
5
1 record evidence, a task largely within the discretion of the
2 agency.”). The only evidence Baig provided of specific harm
3 to himself (the attempted kidnapping) did not rise to the level
4 of persecution; it occurred in 2006; and Baig did not know who
5 the men were or why they had approached him. Jian Xing Huang,
6 421 F.3d at 129. As the agency concluded, none of Baig’s
7 evidence showed that persons similarly situated (i.e., persons
8 perceived as being wealthy Americanized Pakistanis) have been
9 targeted in Pakistan. Although one of the news articles stated
10 that “[k]idnapping has become a big business in Pakistan in
11 recent years,” it also stated that “it is not just foreigners
12 who are [at] risk.” Therefore, while Baig presented evidence
13 of the high rates of crime and kidnapping in Pakistan, the agency
14 did not err in finding speculative his claim that he would be
15 targeted for being perceived as a wealthy Americanized
16 Pakistani and that he therefore failed to establish an
17 objectively reasonable fear of future persecution. Jian Xing
18 Huang, 421 F.3d at 129; Xiao Ji Chen, 471 F.3d at 342; Jian Hui
19 Shao, 546 F.3d at 169-72.
20 Accordingly, because the agency reasonably found that Baig
21 failed to demonstrate a well-founded fear of persecution, it
22 did not err in denying asylum or in concluding that he
6
1 necessarily failed to meet the higher burden required for
2 withholding of removal or his burden for CAT relief. See Lecaj
3 v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
4 For the foregoing reasons, the petition for review is
5 DENIED. Petitioner’s request for oral argument is DENIED in
6 accordance with Federal Rule of Appellate Procedure 34(a)(2),
7 and Second Circuit Local Rule 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
7