Hossain v. Holder ( 2010 )

08-1809-ag (L); 08-5722-ag (Con)
Hossain v. Holder
BIA
Nelson, IJ
A070 654 688
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED SUMMARY ORDER
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At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 7th day of April, two thousand ten.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
AKTER HOSSAIN, ALSO KNOWN AS AHMED
HOSSAIN,
Petitioner,
08-1809-ag (L);
08-5722-ag (Con)
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Barbara J. Brandes, New York, N.Y.
FOR RESPONDENT: R. Alexander Goring, Trial Attorney,
(Tony West, Assistant Attorney General,
Michelle Gorden Latour, Assistant
Director, of counsel), Office of
Immigration Litigation, United States
Department of Justice, Washington, DC
UPON DUE CONSIDERATION of these consolidated petitions for
review of two Board of Immigration Appeals (“BIA”) decisions, it
is hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for
review are DENIED in part and DISMISSED in part.
Petitioner Akter Hossain, a native and citizen of
Bangladesh, seeks review of: (1) the March 18, 2008 order of the
BIA affirming the May 19, 2006 decision of Immigration Judge
(“IJ”) Barbara A. Nelson and denying petitioner’s motion to
remand, In re Akter Hossain, No. A070 654 688 (B.I.A. Mar. 18,
2008) aff’g No. A070 654 688 (Immig. Ct. N.Y. City May 19, 2006);
and (2) the October 27, 2008 order of the BIA denying his first
and second motions to reopen, In re Akter Hossain, No. A070 654
688 (B.I.A. Oct. 27, 2008). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
I. Docket Number 08-1809-ag
As an initial matter, Hossain fails to challenge the BIA’s
denial of his motion to remand in its March 18, 2008 order.
Therefore, we need not address that issue.
A. Adjustment of Status
In addition, contrary to Hossain’s arguments, we lack
jurisdiction to review the IJ’s discretionary denial of his
application for adjustment of status. See 8 U.S.C.
§ 1252(a)(2)(B)(I); Ling Yang v. Mukasey, 514 F.3d 278, 280 (2d
Cir. 2008).
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B. Asylum, Withholding of Removal, and CAT relief
Under the circumstances of this case, we review both the
BIA’s and IJ’s opinions. See Yun-Zui Guan v. Gonzales, 432 F.3d
391, 394 (2d Cir. 2005). We review the IJ’s factual findings,
including adverse credibility determinations, under the
substantial evidence standard, and we review de novo questions of
law and the application of law to undisputed fact. See 8 U.S.C.
§ 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.
2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
Substantial evidence supports the IJ’s adverse credibility
determination, and, accordingly, her denial of Hossain’s asylum
application. Hossain does not challenge several of the agency’s
credibility findings, including: (1) that the false documents he
submitted to the agency from 1996 through 2006 undermined his
credibility; (2) that there was an inconsistency between his
testimony and a document in the record regarding whether he was
detained by the police; and (3) that he omitted from his asylum
application any assertion that he was beaten in 1985 by the
police in Bangladesh. Thus, he has waived any challenge to those
findings, Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545
n.7 (2d Cir. 2005) and they stand as valid bases for the IJ’s
adverse credibility determination, see Shunfu Li v. Mukasey, 529
F.3d 141, 146-147 (2d Cir. 2008). These findings alone provide
substantial evidence for the agency’s adverse credibility
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determination. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.
2007).
Moreover, given the findings described above, there is no
merit to Hossain’s argument that the IJ made an adverse
credibility finding only with respect to his identity and not
with respect to his underlying claim. See Zaman v. Mukasey, 514
F.3d 233, 237-38 (2d Cir. 2008) (finding that the IJ’s analysis
qualified as an “explicit credibility finding” because the IJ
expressed “grave doubts” about the petitioner’s credibility and
cited specific reasons for those doubts). And even if the IJ’s
credibility determination had been so limited, the submission of
a forged document is, absent a satisfactory explanation or
rebuttal, sufficient basis to impeach a petitioner’s general
credibility. See Borovikova v. United States Dep't of Justice,
435 F.3d 151, 157-58 (2d Cir. 2006). To the extent Hossain
argues that the IJ erred in refusing to accept additional
documentation which would have corroborated his identity, that
argument is belied by the record, which indicates that the IJ
accepted such documentation and addressed it in her decision.
Finally, while Hossain argues that the IJ erred in failing
to evaluate his future persecution claim and his applications for
withholding of removal and CAT relief, because those claims were
based on the same set of facts that the IJ found not to be
credible, they also failed. See Paul v. Gonzales, 444 F.3d 148,
156 (2d Cir. 2006).
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C. Request for Continuance
We review an IJ’s decision to deny a motion for continuance
for abuse of discretion. Sanusi v. Gonzales, 445 F.3d 193, 199
(2d Cir. 2006). Here, the IJ did not abuse her discretion in
declining to continue the proceedings given that she had
previously granted Hossain several continuances. The BIA will
ordinarily grant an unopposed motion to continue the proceedings
pending decision on a family-based visa petition (Form I-130).
See Matter of Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009).
However, Hossain’s application for adjustment of status based on
the approval of his first I-130 petition had been denied at the
time he sought a continuance, a factor that the IJ could properly
consider, see id. at 792. Moreover, the IJ was entitled to
consider “evidence of potential fraud,” id., a category that
encompasses the evidence that Hossain had filed his first I-130
under an assumed name.
Hossain’s due process argument fails because an alien has no
due process rights to a discretionary grant of relief such as
adjustment of status. See Yuen Jin v. Mukasey, 538 F.3d 143,
156-57 (2d Cir. 2008).
II. Docket Number 08-5722-ag
We review the BIA’s denial of a motion to reopen for abuse
of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005)
(per curiam).
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A. First Motion to Reopen
As discussed above, we lack jurisdiction to review the IJ’s
denial of Hossain’s application for adjustment of status. It
follows, then, that we also lack jurisdiction of the BIA’s denial
of Hossain’s first motion to reopen to the extent the BIA
declined to reopen for him to pursue his adjustment application
based on the IJ’s prior discretionary denial. See Mariuta v.
Gonzales, 411 F.3d 361, 366 (2d Cir. 2005) (finding that the
Court lacked jurisdiction to review the BIA’s denial of a motion
to reopen where the denial is based on a discretionary
determination of the merits of the underlying application and the
underlying application is subject to the jurisdictional bar of
the Immigration and Nationality Act).
B. Second Motion to Reopen
There is no dispute that Hossain’s second motion to reopen
was untimely and number-barred. See 8 C.F.R.
§ 1003.2(c)(2) (providing that an alien seeking to reopen
proceedings may file only one motion to reopen no later than 90
days after the date on which the final administrative decision
was rendered). However, there are no time and number limitations
when a motion to reopen is “based on changed circumstances
arising in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material and
was not available and could not have been discovered or presented
at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
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The BIA did not abuse its discretion by denying Hossain’s
second motion to reopen. Contrary to Hossain’s argument that
reopening was warranted based on the past persecution he suffered
in Bangladesh, the IJ’s denial of his motion was not erroneous
because it was based on the same political involvement that the
BIA and IJ had already found not credible. See Paul, 444 F.3d at155 n.5 (explaining that when a petitioner has previously been
found not credible as to his alleged past persecution, he “cannot
assert [in his motion to reopen] that he subjectively fears
persecution on [that] basis.”); Kaur, 413 F.3d at 234 (finding
that the BIA does not abuse its discretion in denying a motion to
reopen when the movant does not overcome a prior adverse
credibility determination). Moreover, contrary to Hossain’s
argument that reopening was warranted based on his political
involvement in the United States, the BIA reasonably considered
Hossain’s evidence and found that he failed to demonstrate
changed country conditions in Bangladesh. See Wei Guang Wang v.
BIA, 437 F.3d 270, 273-74 (2d Cir. 2006).
For the foregoing reasons, these petitions for review are
DENIED in part and DISMISSED in part. As we have completed our
review, the pending motion for a stay of removal in these
petitions is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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