Khatra v. Holder , 481 F. App'x 665 ( 2012 )

11-1238-ag
Khatra v. Holder
BIA
A076 093 486
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 1st day of June, two thousand twelve.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 BARRINGTON D. PARKER,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12
13 HARJIT SINGH KHATRA,
14 Petitioner,
15
16 v. 11-1238-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: William P. Joyce, Boston, M.A.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Blair T. O’Connor,
27 Assistant Director; Juria L. Jones,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
32
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Harjit Singh Khatra, a native and citizen of
6 India, seeks review of a March 2, 2011 decision of the BIA
7 denying his motion to reconsider the denial of his fourth
8 motion to reopen his removal proceedings. In re Harjit
9 Singh Khatra, No. A076 093 486 (B.I.A. Mar. 2, 2011). We
10 assume the parties’ familiarity with the underlying facts
11 and procedural history in this case.
12 As Khatra timely petitioned for review of only the
13 BIA’s denial of his motion for reconsideration of its
14 previous denial of his fourth motion to reopen, we are
15 precluded from considering the merits of the underlying
16 motion to reopen and removal proceedings. See Jin Ming Liu
17 v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). We have
18 reviewed the denial of Khatra’s motion to reconsider for
19 abuse of discretion. See id. A motion to reconsider must
20 “specify errors of law or fact in the [challenged BIA
21 decision] and [] be supported by pertinent authority.” See
22 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b)(1); Ke Zhen
23 Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.
24 2001).
2
1 Contrary to Khatra’s argument, the BIA did not abuse
2 its discretion in denying reconsideration because it was
3 permitted to consider the adverse credibility finding made
4 by the immigration judge (“IJ”) in its rejection of Khatra’s
5 claim in his fourth motion to reopen, that he had a well-
6 founded fear of persecution. See Paul v. Gonzales, 444 F.3d
7 148, 154 (2d Cir. 2004) (holding that “an applicant may
8 prevail on a theory of future persecution despite an IJ’s
9 adverse credibility ruling as to past persecution, so long
10 as the factual predicate of the applicant’s claim of future
11 persecution is independent of the testimony that the IJ
12 found not to be credible” (emphasis in original)). As the
13 BIA noted, Khatra had not shown that the factual predicate
14 of his claim of future persecution was independent of the
15 testimony that the IJ found incredible, as his fear of
16 future harm was based on the incidents of past persecution
17 or continuing retaliation for the same political activities
18 alleged in his original asylum application. Because Khatra
19 failed to identify any error in the BIA’s consideration of
20 the adverse credibility determination, he did not satisfy
21 the requirements for reconsideration. See 8 U.S.C. §
22 1229a(c)(6).
3
1 While Khatra argues that the BIA erred by failing to
2 consider his evidence of changed country conditions, the
3 record does not compellingly suggest that the BIA failed to
4 consider any evidence, as the BIA explicitly referenced the
5 background evidence he submitted in its denial of the fourth
6 motion to reopen. See Xiao Ji Chen v. U.S. Dep’t of
7 Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming
8 that the agency “has taken into account all of the evidence
9 before [it], unless the record compellingly suggests
10 otherwise”). Furthermore, in denying reconsideration, the
11 BIA referenced Khatra’s supporting evidence, noting that it
12 suggested that the then-current conditions in India were a
13 continuation of previously existing conditions.
14 Because the remainder of Khatra’s motion to reconsider
15 merely reasserted arguments rejected by the BIA in denying
16 his motion to reopen, the BIA did not abuse its discretion
17 in denying his motion to reconsider. See Jin Ming Liu, 439
18 F.3d at 111 (noting that the BIA does not abuse its
19 discretion by denying a motion to reconsider when the motion
20 merely repeats arguments that the BIA has previously
21 rejected).
22
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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