Rehman v. Sessions , 700 F. App'x 29 ( 2017 )

16-208
Rehman v. Sessions
BIA
Poczter, IJ
A088 406 441
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 10th day of July, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 ABDUR REHMAN,
14 Petitioner,
15
16 v. 16-208
17 NAC
18 JEFFERSON B. SESSIONS, III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General, Douglas
27 E. Ginsburg, Assistant Director,
28 Andrew B. Insenga, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Abdur Rehman, a native and citizen of Pakistan,
6 seeks review of a January 12, 2016 decision of the BIA affirming
7 a March 18, 2014 decision of an Immigration Judge (“IJ”) denying
8 Rehman’s application for asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). In re
10 Abdur Rehman, No. A088 406 441 (B.I.A. Jan. 12, 2016), aff’g
11 No. A088 406 441 (Immig. Ct. N.Y.C. Mar. 18, 2014). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case. We have reviewed both the IJ’s
14 and the BIA’s opinions “for the sake of completeness.”
15 Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006).
16 I. Asylum
17 An asylum application must be filed within one year of an
18 applicant’s arrival in the United States, absent changed or
19 extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(B), (D).
20 Our jurisdiction to review the agency’s pretermission of asylum
21 on timeliness grounds is limited to “constitutional claims or
22 questions of law.” 8 U.S.C. § 1252(a)(2)(D); see 8 U.S.C.
23 § 1158(a)(3).
2
1 Rehman contends that we have jurisdiction to consider his
2 argument that the BIA engaged in improper fact-finding on
3 appeal. He asserts that the IJ ignored evidence that his delay
4 in filing for asylum after his entry in March 2005 was justified
5 by the time it took for him to collect documents to support his
6 application, after he discovered his undocumented status, and
7 that the BIA erred by deeming this evidence unpersuasive.
8 The BIA did not engage in improper de novo fact-finding.
9 Rather, it evaluated the import of the facts found by the IJ—that
10 Rehman was represented by counsel during the nine months between
11 the time he discovered his lack of status and his 2013 filing
12 of his asylum application—and held that those facts rendered
13 Rehman’s argument unpersuasive. Because the BIA did not engage
14 in improper fact-finding, we have no jurisdiction to conduct
15 any further review of the agency’s denial of asylum.
16 II. Withholding of Removal
17 Since Rehman did not allege past persecution, he bore the
18 burden of demonstrating that he would “more likely than not”
19 be persecuted on account of a protected ground upon his return
20 to Pakistan. As relevant to this case, he had to show that his
21 political opinion or his membership in a particular social group
22 would be “one central reason” that armed men, or mujahideen,
23 would target him if he returned to Pakistan. See 8 U.S.C.
3
1 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8 C.F.R.
2 § 1208.16(b)(1)(iii); In re C-T-L-, 25 I. & N. Dec. 341, 348
3 (BIA 2010). A fear of future persecution must be “objectively
4 reasonable,” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d
5 Cir. 2004), and requires “some showing that” the persecutors
6 “are either aware of [the petitioner’s] activities or likely
7 to become aware of his activities,” Hongsheng Leng v. Mukasey,
8 528 F.3d 135, 143 (2d Cir. 2008). The claim cannot be
9 speculative and must have “solid support in the record.” Jian
10 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).
11 Rehman testified that mujahideen came to his home in
12 Pakistan in 2004 or 2005, and said that because he had been to
13 the United States, he had a lot of money. They therefore
14 demanded payment and his participation in jihad. Based on this
15 testimony, which did not reflect any awareness by the mujahideen
16 of Rehman’s political activities, the agency reasonably
17 determined that the mujahideen were motivated by desire to
18 increase their financial resources and fill their ranks rather
19 than antagonism toward Rehman’s political opinion. See Kyaw
20 Zwar Tun v. INS, 445 F.3d 554, 565 (2d Cir. 2006) (applicant
21 must show that his “persecutor is, or could become, aware of
22 the applicant’s possession of the disfavored belief or
23 characteristic”); cf. Paloka v. Holder, 762 F.3d 191, 196-97
4
1 (2d Cir. 2014) (whether persecution occurs “on account of”
2 membership in a particular social group “depends on the views
3 and motives of the persecutor”). Rehman’s argument that his
4 membership in the Awami National Party (“ANP”) serves as
5 circumstantial evidence that he was targeted because of his ANP
6 membership is circular and unpersuasive. Jian Xing Huang, 421
7 F.3d at 129.
8 Rehman also argues that these facts show that the
9 mujahideen targeted him because of his membership in two
10 particular social groups: Pakistani citizens with perceived
11 ties to the United States, and Pakistani citizens perceived to
12 support the United States. Although the agency does not appear
13 to have considered whether these could constitute cognizable
14 particular social groups, Rehman’s argument fails. These
15 purported groups are overbroad and amorphous. See Ucelo-Gomez
16 v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007). A particular social
17 group is cognizable if it refers to “a discrete class of persons”
18 and “the relevant society perceives, considers, or recognizes
19 the group as a distinct social group.” Matter of W-G-R-, 26
20 I. & N. Dec. 208, 210, 217 (BIA 2014); see Paloka, 762 F.3d at
21 195 (deferring to the BIA’s construction of “particular social
22 group”). Rehman does not elaborate on what it means in this
23 context to “have ties to” or “support” the United States. Those
5
1 phrases could encompass an enormous range of actions or
2 activities. See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 239
3 (BIA 2014) (particular social group cannot be “amorphous,
4 overbroad, diffuse, or subjective”). Indeed, Rehman’s own
5 (adult) children living in Pakistan could be described as having
6 ties to the United States, because they have a relative in the
7 United States who sends them money, but Rehman presented no
8 evidence that the mujahideen have contacted them since 2008 or
9 2009. Nor does Rehman present any evidence that Pakistani
10 society recognizes his proposed groups as socially distinct.
11 See Paloka, 762 F.3d at 196 (“[W]hat matters is whether society
12 as a whole views a group as socially distinct . . . .”).
13 Accordingly, the agency reasonably concluded that Rehman failed
14 to show a clear probability of future harm on account of a
15 protected ground.
16 Rehman argues that the IJ failed to consider his
17 corroborating evidence of his fear of future persecution. As
18 the agency found, Rehman failed to submit a statement or any
19 other evidence from his family that anyone was still seeking
20 him out in Pakistan, even though he testified that he frequently
21 speaks to his son on the phone and such evidence would be readily
22 available. Because the agency may require corroboration of
23 otherwise credible testimony and because Rehman was in contact
6
1 with his son and could have, but did not, obtain a statement
2 from him, the IJ did not err in finding that Rehman failed to
3 corroborate his claim that his son had received threats or
4 inquiries about Rehman. See 8 U.S.C. § 1158(b)(1)(B)(ii);
5 Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 2009).
6 Rehman’s explanation in his brief on appeal that his family
7 members were not threatened because they are not ANP members
8 misses the point of the agency’s critique: Rehman’s earlier
9 claim was not that his family was threatened for their politics;
10 rather, he asserted that they were approached by people looking
11 for him. This is the assertion that he did not corroborate,
12 and that was important to supporting his stated fear of his own
13 future persecution. And, contrary to his argument, the record
14 evidence of general country conditions evidence does not
15 corroborate that the mujahideen continue to seek him out
16 specifically. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 153
17 (2d Cir. 2008) (holding incidents of mistreatment appearing in
18 country reports “insufficient to indicate that the applicant
19 would be singled out for this treatment upon his return”
20 (internal quotation marks omitted)).
21 III. Convention Against Torture
22 Rehman argues that the agency ignored evidence that he
23 would be tortured by the Taliban or mujahideen if returned to
7
1 Pakistan. To qualify for CAT relief, an applicant must show
2 that he will more likely than not be tortured. Torture is “an
3 extreme form of cruel and inhuman treatment” that is “inflicted
4 by or at the instigation of or with the consent or acquiescence
5 of a public official or other person acting in an official
6 capacity.” 8 C.F.R. § 1208.18(a)(1),(2); see Khouzam v.
7 Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004). In determining
8 whether an alien is eligible for CAT relief, the agency
9 considers evidence of past torture, the alien’s potential for
10 relocation within the country of removal, evidence of mass
11 violations of human rights in that country, and any other
12 relevant factors. 8 C.F.R. § 1208.16(c)(3). Here, Rehman
13 presented no evidence of past torture and cites no relevant
14 evidence of country conditions in his brief. Instead, he
15 testified that his family remained unharmed in Pakistan and that
16 the Taliban and mujahideen had not threatened them since 2009.
17 To the extent he testified that the mujahideen continued to seek
18 him out, he failed to submit any statements from his family to
19 corroborate that allegation. See 8 U.S.C.
20 § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 196-98. Given
21 Rehman’s testimony and the lack of corroborating evidence, the
22 agency reasonably concluded that he had not met his burden of
23 showing that the Taliban and mujahideen would “more likely than
8
1 not” target him for torture. See Melgar de Torres v. Reno, 191
2 F.3d 307, 313 (2d Cir. 1999) (family members still residing
3 safely in country of origin “cuts against” argument of
4 well-founded fear of future persecution); Mu Xiang Lin v. U.S.
5 Dep’t of Justice, 432 F.3d 156, 158 (2d Cir. 2005) (denying
6 petition where applicant presented no “particularized evidence
7 suggesting that she is likely to be subjected to torture”).
8 IV. Relocation
9 The agency may consider the reasonableness of internal
10 relocation in the context of ruling on both withholding of
11 removal and CAT claims. 8 C.F.R. § 1208.16(b)(3), (c)(3)(ii).
12 Rehman argues that the agency erred in finding that he could
13 safely relocate to Islamabad, Pakistan. But the agency’s
14 finding was supported by substantial evidence: Rehman’s
15 witness, Taj Akbar, testified to being the leader of Rehman’s
16 ANP chapter and, like Rehman, living in the United States, but
17 acknowledged that he is able to travel frequently to Islamabad
18 for several weeks at a time without incident. Rehman also
19 testified that his adult son living in Pakistan remained
20 unharmed after simply moving to a different neighborhood in the
21 same general area. See Singh v. BIA, 435 F.3d 216, 219 (2d Cir.
22 2006) (relief is not available to “obviate re-location to
23 sanctuary in one’s own country”).
9
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O=Hagan Wolfe, Clerk
10