Mohamed Fawzer v. Whitaker ( 2018 )

16-3128
Mohamed Fawzer v. Whitaker
BIA
Vomacka, IJ
A205 442 791
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.
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 15th day of November, two thousand
eighteen.
PRESENT:
JOHN M. WALKER, JR.,
DENNIS JACOBS,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
MOHAMED FAZLAN MOHAMED FAWZER,
Petitioner,
v. 16-3128
NAC
Matthew G. Whitaker, ACTING
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Joshua E. Bardavid, New York,
NY.
FOR RESPONDENT: Chad A. Readler, Acting
Assistant Attorney General;
Leslie McKay, Senior Litigation
Counsel; Virginia L. Gordon,
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 Mohamed Fazlan Mohamed Fawzer, a native and
citizen of Sri Lanka, seeks review of an August 17, 2016,
decision of the BIA affirming an October 30, 2014, decision
of an Immigration Judge (“IJ”) denying Fawzer’s application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Mohamed Fazlan
Mohamed Fawzer, No. A205 442 791 (B.I.A. Aug. 17, 2016), aff’g
No. A205 442 791 (Immig. Ct. N.Y. City Oct. 30, 2014). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA, i.e., excluding the
adverse credibility determination, which the BIA declined to
reach. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
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520, 522 (2d Cir. 2005). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). An asylum
applicant bears the burden of establishing that he suffered
past persecution or has a well-founded fear of future
persecution in the country of removal on account of a
protected ground (“race, religion, nationality, membership in
a particular social group, or political opinion”). 8 U.S.C.
§ 1101(a)(42); Jin Jin Long v. Holder, 620 F.3d 162, 166 (2d
Cir. 2010). For applications such as Fawzer’s, governed by
the REAL ID Act of 2005, the applicant must show a
“sufficiently strong” nexus to a protected ground by
demonstrating that the protected ground is or will be “at
least one central reason” for his persecution. 8 U.S.C.
§ 1158(b)(1)(B)(i); Castro v. Holder, 597 F.3d 93, 100 (2d
Cir. 2010.) As the BIA has explained, “the protected ground
cannot play a minor role in the alien’s past mistreatment or
fears of future mistreatment. That is, it cannot be
incidental, tangential, superficial, or subordinate to
another reason for harm.” Matter of J-B-N- & S-M-, 24 I. &
N. Dec. 208, 214 (B.I.A. 2007).
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We conclude that the record evidence here does not compel
the conclusion that Fawzer met his burden of establishing
eligibility for asylum and for withholding of removal by
showing a nexus exists between the harm he allegedly suffered
and fears suffering and either his religion or his pro-United
National Party (“UNP”) political opinion.1 The BIA reasonably
concluded that Fawzer’s asserted mistreatment arose not from
a protected ground but from a business dispute involving an
individual named Chandana, who obtained an SUV from Fawzer’s
father’s car dealership. Chandana, with others, allegedly
kidnapped Fawzer after Fawzer sought to hold Chandana to his
end of the bargain in connection with the SUV. The record
shows that Fawzer repeatedly sought payment of the money his
family was owed, that he reported Chandana to the police, and
1 Fawzer did not challenge the IJ’s determination to deny CAT
relief before the Board and has therefore waived that claim. See
Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007) (“To
preserve an issue for judicial review, the petitioner must first
raise it with specificity before the BIA . . . [and] generalized
protestations or the mere statement that removal would be improper
lack the specificity required for preservation.”); see also 8
U.S.C. § 1252(d)(1) (“A court may review a final order of removal
only if . . . the alien has exhausted all administrative remedies
available to the alien as of right . . . .”). Furthermore, even
if we could review it, he does not raise the issue of CAT relief
with any specificity in his brief to this Court. Norton v. Sam’s
Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently
argued in the briefs are considered waived and normally will not
be addressed on appeal.”).
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that Chandana, in allegedly visiting harm on Fawzer,
repeatedly referred to Fawzer’s efforts to obtain the money.
In such circumstances and viewing the record as a whole, we
cannot conclude that the agency acted unreasonably in
determining that Fawzer’s alleged persecutors “were motivated
by financial gain” and that insults directed at Fawzer’s
religion and political affiliation were “incidental or
tangential to the persecutor’s actual motive.”2
Fawzer argues that record evidence shows that Chandana
made demeaning remarks about Muslims and also commented on
Fawzer’s UNP support while harming him. This evidence,
however, does not compel the conclusion that Chandana was
motivated to harm Fawzer for these reasons. As we have said
in the past, “we cannot accept that any use of an ethnic slur
perforce renders ethnicity the motivation for any concomitant
2To the extent Fawzer argues the BIA failed to address his fears
of future persecution, he is incorrect. The BIA explicitly stated
in its decision that “[b]ecause the respondent has not demonstrated
that a protected ground under the Act was at least one central
reason for the harm he experienced and fears upon return,” he has
not met his burden. Certified Administrative Record (“CAR”) at 4
(emphasis added). Because the basis for all his claims revolved
around the Chandana incident, the finding that any past persecution
suffered did not have a nexus to a protected ground means that any
future fears would not either. See Jin Jin Long v. Holder, 620
F.3d 162, 166 (2d Cir. 2010) (“Eligibility for both asylum and
withholding of removal requires that an applicant demonstrate a
nexus between the persecution he alleges (or fears) and an asserted
protected ground . . . .”).
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infliction of harm” but must “allow the IJ to make a finding
regarding the attackers’ motivation, and uphold that finding
where it is supported and absent compelling evidence to the
contrary.” Candra v. Gonzales, 219 F. App’x. 53, 55 (2d Cir.
2007) (summary order); see also Gonzales-Posadas v. Att’y
Gen. of U.S., 781 F.3d 677, 686-87 (3d Cir. 2015) (record
supported finding that homophobic slurs did not establish
motive where other evidence, including petitioner’s own
statements, suggested that alleged persecutors wished to
coerce petitioner into paying extortion or joining a gang);
Parussimova v. Mukasey, 555 F.3d 734, 742 (9th Cir. 2009)
(concluding that ethnic slur did not compel conclusion that
ethnicity was a central motivating reason for attempted
sexual assault). Here, as the BIA noted, Fawzer’s own asylum
statement affirmed that Chandana “kept returning to the
central theme of asking sarcastically whether the respondent
needed ‘the money back now.’” Certified Administrative
Record (“CAR”) at 4 (BIA Opinion); see Lie v. Ashcroft, 396
F.3d 530, 535 (3d Cir. 2005) (concluding that BIA’s nexus
decision was supported by substantial evidence where, even
though alleged persecutors used ethnic slurs, “significant
evidence support[ed] the conclusion that the attackers were
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motivated by money”). And even if a reasonable factfinder
could have reached a determination different from the IJ’s,
this Court must uphold an administrative finding of fact as
to motive unless a petitioner shows “that the evidence he
presented was so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution” on the
basis of a protected ground. INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992).3
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
3 Similarly, Fawzer’s arguments as to letters submitted by his
family are unavailing. The IJ clearly gave little weight to the
letters, saying this about Fawzer’s corroborating evidence: “The
respondent’s corroborating evidence in general is not very
compelling.” CAR 76; see also CAR 84 (“The Court believes that
the corroborating evidence in this case taken altogether is far
from sufficient” given the discrepancies between it and
petitioner’s testimony). If the BIA erred in not reviewing the
corroborating evidence, its failure to do so was harmless, given
the standard of review. Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006) (noting that the weighing of
evidence “lies largely within the discretion of the IJ”) (internal
quotation marks and brackets omitted); see also Vente v. Gonzales,
415 F.3d 296, 300-01 (3d Cir. 2005) (finding that because
corroboration was never an issue in petitioner’s case, it was not
error for BIA to fail to conduct an “independent corroboration
analysis” after reversing IJ’s credibility analysis and finding
petitioner was credible but nonetheless did not meet his burden of
proof).
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is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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