Bokhari v. Holder , 463 F. App'x 23 ( 2012 )

11-1704-ag
Bokhari v. Holder
BIA
Elstein, IJ
A095 956 968
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.
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 22nd day of February, two thousand twelve.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
BARRINGTON D. PARKER,
Circuit Judges.
_____________________________________
SAMEER BOKHARI,
Petitioner,
v. 11-1704-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Usman B. Ahmad, Long Island City, NY.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Paul Fiorino, Senior Litigation
Counsel; Franklin M. Johnson, Jr.,
Trial Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
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
DISMISSED in part and DENIED in part.
Petitioner Sameer Bokhari, a native and citizen of
Pakistan, seeks review of a March 31, 2011, order of the BIA
affirming the March 5, 2009, decision of Immigration Judge
(“IJ”) Annette S. Elstein denying his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Sameer Bokhari, No. A095 956
968 (B.I.A. Mar. 31, 2011), aff’g No. A095 956 968 (Immig. Ct.
N.Y. City Mar. 5, 2009). 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 supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (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).
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Bokhari argues that the agency erred in pretermitting his
asylum application as untimely. Our review of the agency’s
pretermission of an asylum application is limited to questions
of law and constitutional claims. See 8 U.S.C. §§ 1158(a)(3),
1252(a)(2)(D). Bokhari asserts that under the Ninth Circuit’s
non-precedential decision in Chunmiao Wang v. Keisler, 254 F.
App’x 572, 574-75 (9th Cir. 2007), his lack of knowledge about
the availability of asylum was an extraordinary circumstance
excusing his failure to file timely. However, this argument
is unavailing. Chunmiao Wang did not rule on ignorance alone
but, instead on a combination of ignorance plus changed
circumstances. See Chunmiao Wang, 254 F. App’x at 574-75. In
any event, we see no basis for permitting ignorance of asylum
filing requirements to justify a late filing. We dismiss for
lack of jurisdiction Bokhari’s other challenges to the
pretermission ruling as they essentially dispute the
correctness of the agency’s factual findings. See Xiao Ji Chen
v. U.S. Dep’t of Justice, 471 F.3d 315, 328-29 (2d Cir. 2006).
Bokhari also argues that he established his eligibility
for withholding of removal and CAT relief. However, he does
not meaningfully challenge the agency’s findings that he did
not establish past persecution or that it was more likely than
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not that he would be tortured if he is returned to Pakistan.
Accordingly, he has waived those issues. See Yueqing Zhang v.
Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
To demonstrate his eligibility for withholding of
removal, absent past persecution, Bokhari was required to
establish that it is more likely than not that his “life or
freedom would be threatened” in Pakistan because of a
protected ground. See Ramsameachire v. Ashcroft, 357 F.3d
169, 178 (2d Cir. 2004) (quoting 8 U.S.C. § 1231(b)(3)(A)).
An applicant for withholding of removal cannot meet his burden
if he “could avoid a future threat to his . . . life or
freedom by relocating to another part of the proposed country
of removal.” 8 C.F.R. § 1208.16(b)(2).
The agency denied withholding of removal, finding that
Bokhari failed to meet his burden of proof because he did not
provide reasonably available corroborating evidence from his
wife. Because Bokhari’s wife lives in the United States, we
detect no error in the agency’s request that she provide
corroborating evidence. See Chuilu Liu v. Holder, 575 F.3d
193, 197 (2d Cir. 2009) (noting that “an IJ, weighing the
evidence to determine if the alien has met his burden, may
rely on the absence of corroborating evidence adduced by an
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otherwise credible applicant unless such evidence cannot be
reasonably obtained.”); see also Yan Juan Chen v. Holder, 658
F.3d 246, 252-54 (2d Cir. 2011) (per curiam). Bokhari does
not challenge this dispositive finding. See Yueqing Zhang,
426 F.3d at 541 n.1, 545 n.7.
Additionally, substantial evidence supports the agency’s
conclusion that Bokhari’s testimony and country conditions
evidence failed to demonstrate that he could not safely
relocate within Pakistan. Bokhari’s testimony concerned
threats against him from family members, neighbors, his boss,
and government officials connected with his boss, on account
of his false conversion from Islam to Christianity and his
marriage to a Christian. The agency reasonably concluded that
Bokhari could avoid future harm from those individuals by
relocating within Pakistan–to an area where people did not
know about his past–as he did not present evidence that the
government officials (or others) were still interested in him
over twelve years after he left Pakistan.
Moreover, while Bokhari argued that he will be persecuted
on account of his inter-faith marriage and presented the
agency with evidence about anti-Christian violence in
Pakistan, we defer to the agency’s conclusion that that
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evidence did not establish that the persecution of Christians
is so widespread that it is more likely than not that Bokhari
would face persecution throughout Pakistan. See 8 U.S.C. §
1252(b)(4)(B) (“[A]dministrative findings of fact are
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.”).
Finally, the BIA did not err in rejecting Bokhari’s
argument that he received ineffective assistance from his
trial attorneys. Bokhari failed to demonstrate that the
result of his proceeding would have been different had his
counsel been effective. See Vartelas v. Holder, 620 F.3d 108,
113-15 (2d Cir. 2010) (noting that the BIA has not articulated
a single consistent standard for determining whether an alien
has been prejudiced by an attorney’s conduct, but generally an
alien must demonstrate what actions a competent attorney
should have taken which would have warranted a different
result). While Bokhari argues that a competent attorney would
have avoided the agency’s corroboration finding by ensuring
that his wife testified, Bokhari did not present the BIA with
direct evidence of what his wife’s testimony would have
established. Accordingly, we detect no error in the BIA’s
conclusion that Bokhari did not establish that he was
prejudiced by his former counsel.
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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
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
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