Ai Zhu Li v. Holder ( 2009 )

08-5190-ag
Sarker v. Holder
BIA
A075 407 802
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 14 th day of December, two thousand nine.
5 PRESENT:
6 DENNIS JACOBS,
7 Chief Judge,
8 ROGER J. MINER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _________________________________________
12 AARON JAMES SARKER,
13 Petitioner,
14 v. 08-5190-ag
15 NAC
16 ERIC H. HOLDER, JR., UNITED STATES
17 ATTORNEY GENERAL, *
18 Respondent.
19 _________________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Amy N. Gell, Gell & Gell,
2 New York, New York.
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General; William C. Peachey,
5 Assistant Director; Daniel E.
6 Goldman, Senior Litigation Counsel,
7 Office of Immigration Litigation,
8 United States Department of Justice,
9 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 Aaron James Sarker, a native and citizen of
16 Bangladesh, seeks review of the September 25, 2008 order of
17 the BIA denying his motion to reopen. In re Aaron James
18 Sarker, No. A075 407 802 (B.I.A. Sept. 25, 2008). We assume
19 the parties’ familiarity with the underlying facts and
20 procedural history of the case.
21 We review the BIA’s denial of a motion to reopen for
22 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
23 Cir. 2006) (per curiam). When the BIA considers relevant
24 evidence of country conditions in evaluating a motion to
25 reopen, we review the BIA’s factual findings under the
26 substantial evidence standard. See Jian Hui Shao v.
2
1 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
2 An alien seeking to reopen proceedings must file his
3 motion to reopen no later than 90 days after the date on
4 which the final administrative decision was rendered. See
5 8 C.F.R. § 1003.2(c)(2). In this case, there is no dispute
6 that Sarker’s April 2008 motion was untimely, because the
7 BIA issued a final order of removal in March 2003. See id.8 However, there is no time limit for filing a motion to
9 reopen if it is “based on changed circumstances arising in
10 the country of nationality or in the country to which
11 deportation has been ordered, if such evidence is material
12 and was not available and could not have been discovered or
13 presented at the previous hearing.” 8 C.F.R.
14 § 1003.2(c)(3)(ii). The BIA reasonably found that Sarker’s
15 motion to reopen did not qualify for such an exception.
16 Contrary to Sarker’s argument, the BIA considered the
17 country conditions evidence in the record and adequately
18 indicated the basis for its determination that conditions
19 for religious minorities had not significantly worsened in
20 Bangladesh. See Wei Guang Wang v. BIA, 437 F.3d 270, 275
21 (2d Cir. 2006) (noting that where the agency has “given
22 reasoned consideration to the petition and made adequate
3
1 findings,” it need not “expressly parse or refute on the
2 record each individual . . . piece of evidence offered by
3 the petitioner” (internal quotation marks omitted)). As the
4 BIA found, the country conditions evidence in the record
5 indicated that conditions in Bangladesh remained
6 “turbulent,” but did not demonstrate that conditions had
7 materially worsened since the time of Sarker’s hearing
8 before the Immigration Judge. See 8 C.F.R.
9 § 1003.2(c)(3)(ii).
10 We are also unpersuaded by Sarker’s argument that the
11 agency erred by relying on the State Department’s 2007
12 International Religious Freedom Report. Nothing in our
13 decision in Chhetry v. U.S. Department of Justice, 490 F.3d
14 196 (2d Cir. 2007) (per curiam), suggests error in the BIA’s
15 reliance on the report because, rather than taking
16 administrative notice of the report, the BIA considered it
17 after Sarker had submitted it into the record. Id. at 200.
18 Moreover, the BIA was entitled to rely on that report to a
19 greater degree than the report by the Immigration and
20 Refugee Board of Canada. See Poradisova v. Gonzales, 420
21 F.3d 70, 81 n.8 (2d Cir 2005) (noting that “not all
22 organizational reports will merit equal weight, and IJs and
4
1 the BIA have discretion to weigh them differently”). As the
2 BIA reasonably found that Sarker failed to demonstrate a
3 material change in country conditions, it did not abuse its
4 discretion in denying his motion to reopen as untimely. See
5 8 C.F.R. § 1003.2(c)(3)(ii).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
18 By:___________________________
5