Sarkar v. Holder , 476 F. App'x 886 ( 2012 )

11-866-ag
Sarkar v. Holder
BIA
A073 534 922
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 17th day of April, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 RAJA SARKAR,
14 Petitioner,
15
16 v. 11-866-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Raja Sarkar, pro se, East Elmhurst,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; Joanna L.
29 Watson, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED in part and DISMISSED in part.
5 Raja Sarkar, a native and citizen of Bangladesh, seeks
6 review of a February 17, 2011, decision of the BIA denying
7 his motion to reopen. In re Raja Sarkar, No. A073 534 922
8 (B.I.A. Feb. 17, 2011). We assume the parties’ familiarity
9 with the underlying facts and procedural history of this
10 case.
11 We review the BIA’s denial of Sarkar’s motion to reopen
12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien may file only one motion to reopen
14 and must do so within 90 days of the agency’s final
15 administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C);
16 8 C.F.R. § 1003.2(c)(2). It is undisputed that Sarkar’s
17 November 2010 motion to reopen was untimely, because the BIA
18 issued its final order of removal in 2002, and number-
19 barred, because it is his third motion to reopen. See
20 8 U.S.C. § 1229a(c)(7)(A), (C)(i); see also 8 C.F.R.
21 § 1003.2(c)(2). However, the time and number limitations
22 for filing a motion to reopen do not apply if the motion is
23 “based on changed country conditions arising in the country
2
1 of nationality or the country to which removal has been
2 ordered, if such evidence is material and was not available
3 and would not have been discovered or presented at the
4 previous proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
5 also 8 C.F.R. § 1003.2(c)(3)(ii).
6 In this case, the agency did not abuse its discretion
7 in denying Sarkar’s motion to reopen as untimely and number
8 barred because he failed to demonstrate changed country
9 conditions. Contrary to his assertions in his brief, the
10 BIA’s February 2011 decision indicated that it had
11 considered all of the evidence cited by Sarkar in support of
12 his motion. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
13 F.3d 338 n.17 (2d Cir. 2006) (presuming that the agency “has
14 taken into account all of the evidence before [it], unless
15 the record compellingly suggests otherwise”). The BIA also
16 did not abuse its discretion in declining to credit Sarkar’s
17 evidence that his family in Bangladesh was being harassed by
18 Muslim fundamentalists given the IJ’s underlying adverse
19 credibility determination. See Qin Wen Zheng v. Gonzales,
20 500 F.3d 143, 146-49 (2d Cir. 2007) (relying on the doctrine
21 falsus in uno, falsus in omnibus to conclude that the agency
22 may decline to credit documentary evidence submitted with a
3
1 motion to reopen by an alien who was found not credible in
2 the underlying proceeding) (citing Siewe v. Gonzales, 480
3 F.3d 160, 170 (2d Cir. 2007)). Because Sarkar’s brief does
4 not address the BIA’s conclusion that the 2009 State
5 Department report was not, alone, sufficient to merit
6 reopening of his case, we decline to reach that issue. See
7 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541, n.1, 545, n.7
8 (2d Cir. 2005).
9 Moreover, broadly construing Sarkar’s arguments as
10 challenging the BIA’s determination that the 2009 State
11 Department report was insufficient to demonstrate changed
12 conditions, see Ruiz-Martinez v. Mukasey, 516 F.3d 102, 120
13 (2d Cir. 2008), nothing in the 2009 report independently
14 supported reopening. The report noted that violence against
15 religious minorities was a problem “occasionally,” but that
16 the current Bangladeshi government was “sensitive to the
17 religious sentiments of most citizens,” and had enacted a
18 law intended to expedite the return of property expropriated
19 from Hindus following the 1965 India-Pakistan war. Because
20 the 2009 report does not offer any basis for Sarkar’s fear
21 of future persecution in Bangladesh, the BIA reasonably
22 concluded that the report did not merit the reopening of
4
1 Sarkar’s immigration proceedings. Jian Xing Huang v. U.S.
2 INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that absent
3 “solid support” in the record that a fear is objectively
4 reasonable, a claim of future persecution is “speculative at
5 best.”).
6 Finally, we dismiss the petition with respect to
7 Sarkar’s challenge to the IJ’s underlying adverse
8 credibility determination and conduct of his November 1998
9 asylum hearing. We lack jurisdiction to review the IJ’s or
10 BIA’s prior decisions because Sarkar timely petitioned for
11 review only of the denial of his third motion to reopen.
12 See 8 U.S.C. § 1252(b)(1); see also Malvoisin v. INS, 268
13 F.3d 74, 75 (2d Cir. 2001) (“[C]ompliance with the time
14 limit for filing a petition for review of the BIA’s final
15 order is a strict jurisdictional prerequisite.”); Ke Zhen
16 Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (providing
17 that when an alien files a timely petition for review from
18 the denial of a motion to reopen, but not from the
19 underlying affirmance of a removal order, review is confined
20 to the denial of the motion).
21 For the foregoing reasons, the petition for review is
22 DENIED in part and DISMISSED in part. As we have completed
23 our review, any stay of removal that the Court previously
5
1 granted in this petition is VACATED, and any pending motion
2 for a stay of removal in this petition is DISMISSED as moot.
3 Any pending request for oral argument in this petition is
4 DENIED in accordance with Federal Rule of Appellate
5 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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