Rahman v. Holder , 353 F. App'x 643 ( 2009 )

09-2181-ag
Rahman v. Holder
BIA
Abrams, IJ
A 095 956 702
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of November, two thousand nine.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROBERT A. KATZMANN,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 A.B.M. SAIFUR RAHMAN, a.k.a. Abm SAIFUR
14 RAHMAN, a.k.a. SAIFUR Abm RAHMAN
15 Petitioner,
16
17 v. 09-2181-ag
18 NAC
19 ERIC H. HOLDER, JR., ATTORNEY GENERAL,
20 UNITED STATES DEPARTMENT OF JUSTICE,
21 Respondent.
22 ______________________________________
23
24
25
1 FOR PETITIONER: David J. Rodkin, New York, New York.
2
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General; Blair T. O’Connor,
5 Assistant Director; John B. Holt,
6 Trial Attorney, Office of
7 Immigration Litigation, Civil
8 Division, United States Department
9 of Justice, Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is DENIED.
15 Petitioner A.B.M. Saifur Rahman, a native and citizen
16 of Bangladesh, seeks review of the May 7, 2009 order of the
17 BIA affirming the October 24, 2007 decision of Immigration
18 Judge (“IJ”) Steven R. Abrams pretermitting his application
19 for asylum and denying his application for withholding of
20 removal and relief under the Convention Against Torture
21 (“CAT”). In re A.B.M. Saifur Rahman, No. A 095 956 702
22 (B.I.A. May 7, 2009), aff’g No. A 095 956 702 (Immig. Ct.
23 N.Y. City Oct. 24, 2007). We assume the parties’
24 familiarity with the underlying facts and procedural history
25 in this case.
26 When the BIA adopts the decision of the IJ and
27 supplements the IJ’s decision, we review the decision of the
28 IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
2
1 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s
2 factual findings under the substantial evidence standard.
3 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519
4 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of
5 law and the application of law to undisputed fact. See
6 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
7 Rahman does not challenge the IJ’s determination that
8 he was ineligible for asylum because he failed to file his
9 application within the prescribed statutory period. See
10 8 U.S.C. § 1158(a)(2)(B). In addition, because Rahman does
11 not challenge the agency’s adverse credibility determination
12 in his brief, he has waived any challenge to that
13 determination. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
14 541 n.1, 545 n.7 (2d Cir. 2005) (finding that issues not
15 sufficiently argued in the briefs are considered waived and
16 normally will not be addressed on appeal in the absence of
17 manifest injustice). As either of these grounds is
18 sufficient to sustain the agency’s denial of Rahman’s
19 application for asylum, see 8 U.S.C. § 1158(b)(1)(B)(ii); 8
20 C.F.R. § 1003.2(c)(2); Wang v. Bd. of Immigration Appeals,
21 437 F.3d 270, 274 (2d Cir. 2006); Chen v. I.N.S., 344 F.3d
22 272, 276 (2d Cir. 2003) (per curiam), there is no need to
3
1 address his argument that the IJ erred in concluding that he
2 did not establish a nexus to a protected ground, which, in
3 any event, is foreclosed because he did not present it to
4 the BIA. See 8 U.S.C. § 1252(d)(1); Zhong v. U.S. Dep’t of
5 Justice, 480 F.3d 104, 122 (2d Cir. 2007). Moreover, Rahman
6 has abandoned any challenge to the IJ’s denial of his
7 applications for withholding of removal and CAT relief. See
8 Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007)
9 (per curiam).
10 In any event, we find no merit in Rahman’s contention
11 that the IJ improperly denied his motion for a continuance.
12 We review the BIA’s affirmance of an IJ’s decision to deny a
13 motion for a continuance for abuse of discretion. See Rajah
14 v. Mukasey, 544 F.3d 449, 453 (2d Cir. 2008). As we have
15 noted, IJs have “broad discretion” and “are accorded wide
16 latitude in calendar management.” Morgan v. Gonzales, 445
17 F.3d 549, 551 (2d Cir. 2006). An IJ would abuse his
18 discretion in denying a continuance only “if (1) his
19 decision rests on an error of law (such as application of
20 the wrong legal principle) or a clearly erroneous factual
21 finding or (2) his decision – though not necessarily the
22 product of a legal error or a clearly erroneous factual
4
1 finding – cannot be located within the range of permissible
2 decisions.” Id. at 551-52 (internal quotation marks and
3 alterations omitted).
4 Here, the IJ found that even if Rahman could obtain the
5 order sheet proving that the case against him in Bangladesh
6 was active, it would not establish his eligibility for
7 relief, as the IJ found that the case was “a criminal matter
8 that can be handled by the government of Bangladesh,” and
9 this finding was not clearly erroneous. In addition, the
10 BIA noted that Rahman did not know what the order sheet
11 would show, and could not articulate how it would be helpful
12 to his claim. The BIA also observed that, 18 months after
13 the IJ’s decision, Rahman had not submitted the order sheet.
14 Based on this reasoning, we cannot say that the agency
15 committed an error of law, made a clearly erroneous factual
16 finding, or departed from the range of permissible
17 decisions, in denying the continuance. Furthermore, because
18 the IJ’s adverse credibility determination remains
19 unchallenged, Rahman fails to establish that he suffered
20 actual prejudice. See Rajah, 544 F.3d at 453.
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any pending motion
5
1 for a stay of removal in this petition is DISMISSED as moot.
2 Any pending request for oral argument in this petition is
3 DENIED in accordance with Federal Rule of Appellate
4 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
5
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
11 By:___________________________
6