Shabbir v. Holder , 517 F. App'x 36 ( 2013 )

11-4963
Shabbir v. Holder
BIA
Reid, IJ
A088 938 582
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 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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 8th day of April, two thousand thirteen.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 ______________________________________
12
13 IRFAN SHABBIR, AKA IRFAN SHABBIR MALIK,
14 AKA ALI SHAH-SYED, AKA IRFAN SHABEER,
15 Petitioner,
16
17 v. 11-4963
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.*
22 _______________________________________
23
24 FOR PETITIONER: Mitchell C. Zwaik, Zwaik, Gilbert &
25 Associates, P.C., Ronkonkoma, NY.
*
The Clerk of the Court is directed to amend the
official caption to conform to the above.
1 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
2 Attorney General; Keith L. McManus,
3 Senior Litigation Counsel; Michele
4 Y.F. Sarko, Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Irfan Shabbir, a native and citizen of Pakistan, seeks
14 review of an October 31, 2011, decision of the BIA affirming
15 the December 9, 2010, decision of Immigration Judge (“IJ”)
16 John B. Reid, which denied his application for asylum,
17 withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Irfan Shabbir, No. A088 938
19 582 (B.I.A. Oct. 31, 2011), aff’g No. A088 938 582 (Immig.
20 Ct. Batavia Dec. 9, 2010). We assume the parties’
21 familiarity with the underlying facts and procedural history
22 in this case.
23 Under the circumstances of this case, we review both
24 the IJ’s and the BIA’s opinions “for the sake of
25 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
26 2008)(quotation omitted). The applicable standards of
2
1 review are well-established. 8 U.S.C. § 1252(b)(4)(B); see
2 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
3 2008) (per curiam).
4 For asylum applications, such as Shabbir’s, governed by
5 the amendments made to the Immigration and Nationality Act
6 by the REAL ID Act of 2005, the agency may, considering the
7 totality of the circumstances, base a credibility finding on
8 the internal consistency of the applicant’s account, and the
9 consistency of such statements with other record evidence,
10 without regard to whether an inconsistency or inaccuracy
11 “goes to the heart of the applicant’s claim.” 8 U.S.C.
12 § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 165.
13 Here, substantial evidence supports the agency’s
14 adverse credibility determination, given Shabbir’s
15 misrepresentations in his Canadian refugee proceedings, his
16 internally contradictory testimony about an alleged incident
17 in 2001, and a material omission in his asylum application -
18 that he was beaten and tortured while in medical college.
19 See Xiu Xia Lin, 534 F.3d at 167. Shabbir’s explanation for
20 his misrepresentations in his Canadian proceedings – he was
21 advised that it would make his application more successful -
22 would not compel a reasonable fact-finder to credit his
3
1 testimony, see Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
2 Cir. 2005), especially given his failure to meaningfully
3 contest the other bases of the adverse credibility
4 determination, see Yueqing Zhang v. Gonzales, 426 F.3d 540,
5 541 n. 1, 545 n.7 (2d Cir. 2005).
6 The agency also reasonably found that Shabbir failed to
7 establish a pattern or practice of persecution of members of
8 prominent Shia families by Sunni extremists in Pakistan.
9 Initially, we may review Shabbir’s pattern or practice claim
10 because it is subsidiary to his claims raised before the
11 agency. See Gill v. INS, 420 F.3d 82, 86-87 (2d Cir. 2005).
12 The agency reasonably determined that the late-filed copies
13 of letters written by Pakistani officials indicating that
14 his father was on a “hit list” of Sunni extremists were not
15 persuasive evidence supporting his pattern or practice of
16 persecution claim because they did not mention him
17 specifically and because his father remained in Pakistan
18 unharmed. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
19 F.3d 315, 342 (2d Cir. 2006); Melgar de Torres v. Reno, 191
20 F.3d 307, 313 (2d Cir. 1999).
21 Moreover, the BIA reasonably determined that while some
22 background evidence indicated the existence of sectarian
23 violence in Pakistan, including violence against Shia
4
1 Muslims by extremist Sunni Muslims, the evidence also
2 indicated that the violence was insufficiently widespread to
3 conclude that the persecution was both systematic and
4 pervasive. See Santoso v. Holder, 580 F.3d 110, 111-12 (2d
5 Cir. 2009) (accord 8 C.F.R. § 1208.16(b)(2)); see also Siewe
6 v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007).
7 As he has failed to meet the lower burden for asylum
8 eligibility, Shabbir also fails to meet the higher standard
9 for withholding of removal, that it is more likely than not
10 that he would be persecuted in Pakistan. See generally INS
11 v. Cardoza-Fonseca, 480 U.S. 421 (1987).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DENIED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
5