Azad v. Holder , 576 F. App'x 7 ( 2014 )

12-4328
Azad v. Holder
BIA
Straus, IJ
A099 220 963
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 13th day of August, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 ROSEMARY S. POOLER,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 NASHRAT SHAH AZAD,
14 Petitioner,
15
16 v. 12-4328
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Glenn L. Formica, Wade Luckett,
24 Formica Williams, P.C., New Haven,
25 Connecticut.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Jennifer L. Lightbody,
29 Senior Litigation Counsel; Edward E.
1 Wiggers, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Nashrat Shah Azad, a native and citizen of
11 Bangladesh, seeks review of an October 5, 2012, decision of
12 the BIA affirming a January 10, 2011, decision of
13 Immigration Judge (“IJ”) Michael W. Straus, pretermitting
14 his application for asylum and denying his application for
15 withholding of removal and relief under the Convention
16 Against Torture (“CAT”). In re Nashrat Shah Azad, No. A099
17 220 963 (B.I.A. Oct. 5, 2012), aff’g No. A099 220 963
18 (Immig. Ct. Hartford Jan. 10, 2011). We assume the parties’
19 familiarity with the underlying facts and procedural history
20 in this case.
21 Under the circumstances of this case, we have
22 considered both the IJ’s and the BIA’s opinions “for the
23 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
24 (2d Cir. 2008)(internal quotation marks omitted). The
25 applicable standards of review are well-established. See 8
2
1 U.S.C. § 1252(b)(4)(B); Aliyev v. Mukasey, 549 F.3d 111, 115
2 (2d Cir. 2008).
3 I. Pretermission of Asylum
4 Title 8, Section 1158(a)(3) of the United States Code
5 provides that no court shall have jurisdiction to review the
6 agency’s finding that an asylum application was untimely
7 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither
8 changed nor extraordinary circumstances excusing the
9 untimeliness under 8 U.S.C. § 1158(a)(2)(D).
10 Notwithstanding that provision, we retain jurisdiction to
11 review constitutional claims and “questions of law.” 8
12 U.S.C. § 1252(a)(2)(D).
13 Azad contends that the IJ “misstated the facts” in
14 finding that the 2010 attack on his sister’s newspaper did
15 not materially affect his eligibility for asylum. To the
16 extent that this argument “disputes the correctness of the
17 IJ’s fact-finding” that he was not involved with his
18 sister’s newspaper, he does not raise a reviewable question
19 of law. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
20 315, 329 (2d Cir. 2006).
21 Insofar as Azad argues that the IJ’s fact-finding was
22 flawed by an error of law, his claim lacks merit. Given
3
1 Azad’s vague testimony about his involvement with his
2 sister’s newspaper, the IJ’s finding that he had no specific
3 involvement neither “totally overlooked" nor “seriously
4 mischaracterized” the evidence. Mendez v. Holder, 566 F.3d
5 316, 323 (2d Cir. 2009).
6 II. Withholding of Removal and CAT Relief
7 Notwithstanding Azad’s argument to the contrary, the
8 agency did not err in finding that the harm he suffered in
9 Bangladesh did not rise to the level of persecution. See
10 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d
11 Cir. 2006). In finding that Azad failed to establish past
12 persecution, the agency reasonably relied on the fact that
13 he was not physically harmed in Bangladesh and remained in
14 Bangladesh, without incident, for two years following the
15 attempted assault. See id. at 341 (noting that, in order to
16 constitute persecution, the harm must be sufficiently severe
17 to rise above “mere harassment”). Although criminal charges
18 were filed against him, the record shows that Azad was never
19 subjected to serious physical or mental harm and,
20 accordingly, his experiences in Bangladesh do not constitute
21 past persecution. See Mei Fun Wong v. Holder, 663 F.3d 64,
22 72 (2d Cir. 2011).
4
1 The agency also reasonably concluded that Azad failed
2 to establish a well-founded fear of future persecution. See
3 Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005)
4 (holding that absent solid support in the record for the
5 petitioner’s assertion that he would be persecuted, his fear
6 was “speculative at best”). In making this determination,
7 the agency reasonably found that, although Azad’s family
8 members in Bangladesh had been threatened, sued, and had
9 their newspaper ransacked, these experiences did not
10 constitute persecution. See Ivanishvili, 433 F.3d at 342;
11 see also Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d
12 Cir. 1999) (determining that petitioner’s fear of future
13 persecution was diminished when similarly-situated relatives
14 continued to live in petitioner’s native country without
15 harm). Moreover, Azad remained in Bangladesh for two years
16 following the attempted attack, without incident, further
17 undercutting the likelihood of future persecution.
18 Finally, because Azad’s CAT claim is based on the same
19 evidence as his withholding of removal claim, the claim
20 fails for the same reasons. See Paul v. Gonzales, 444 F.3d
21 148, 156 (2d Cir. 2006).
22 For the foregoing reasons, the petition for review is
23 DENIED. As we have completed our review, the pending motion
5
1 for a stay of removal in this petition is DISMISSED as moot.
2
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
6