Ahmed v. Holder , 448 F. App'x 122 ( 2011 )

10-2940-ag (L) BIA
Ahmed v. Holder Abrams, IJ
A093 247 671
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 23rd day of November, two thousand eleven.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
ZAKIR AHMED,
Petitioner,
v. 10-2940-ag (L)
10-4914-ag (Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Jennifer L. Lightbody,
Senior Litigation Counsel; Kiley L.
Kane, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petitions for
review are DENIED.
Zakir Ahmed, a native and citizen of Bangladesh, seeks
review of a June 22, 2010 decision of the BIA affirming the
May 15, 2009 decision of Immigration Judge (“IJ”) Steven R.
Abrams, which denied Ahmed’s application for cancellation of
removal. In re Zakir Ahmed, No. A093 247 671 (B.I.A. June
22, 2010), aff’g No. A093 247 671 (Immig. Ct. N.Y. City May
15, 2009). Ahmed also seeks review of a November 15, 2010
decision of the BIA denying his motion to reopen and
reconsider. In re Zakir Ahmed, No. A093 247 671 (B.I.A.
Nov. 15, 2010). We assume the parties’ familiarity with the
underlying facts and procedural history of this case. Under
the circumstances of this case, we review 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 Yanqin Weng v. Holder, 562
F.3d 510, 513 (2d Cir. 2009).
I. Cancellation of Removal
In order for an alien who is not a lawful permanent
resident to demonstrate eligibility for cancellation of
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removal, he must demonstrate, inter alia, that his removal
would result in exceptional and extremely unusual hardship
to his spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for permanent
residence. 8 U.S.C. § 1229b(b)(1)(D). Although we
generally do not have jurisdiction to review the agency’s
“exceptional and extremely unusual hardship” finding, see 8
U.S.C. § 1252(a)(2)(B); see also Barco-Sandoval v. Gonzales,
516 F.3d 35, 38-39 (2d Cir. 2008), we retain jurisdiction to
review questions of law, including a claim that a hardship
finding rests on fact-finding that “is flawed by an error of
law.” See 8 U.S.C. § 1252(a)(2)(D); Mendez v. Holder, 566
F.3d 316, 322-23 (2d Cir. 2009) (internal quotation marks
and citations omitted). When “some facts important to the
subtle determination of ‘exceptional and extremely unusual
hardship’ have been totally overlooked . . . an error of law
has occurred.” Mendez, 566 F.3d at 323.
Ahmed argues that the agency erred as a matter of law
by overlooking evidence he submitted, and by not considering
certain factors relevant to the hardship determination.
Specifically, Ahmed contends that the agency overlooked
evidence regarding his finances and country conditions in
Bangladesh. Because Ahmed’s children would return to
Bangladesh with Ahmed, conditions in Bangladesh are relevant
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to the hardship determination. See Matter of Recinas, 23 I.
& N. Dec. 467, 468 (BIA 2002). Moreover, Ahmed’s assets and
finances are relevant because that information helps to
illustrate how difficult a transition to life in Bangladesh
might be for the family. See Matter of Andazola-Rivas, 23
I. & N. Dec. 319, 324 (BIA 2002).
Having reviewed the BIA decision, however, we conclude
that the agency did not overlook or ignore this evidence.
The BIA noted that Ahmed had asserted on appeal that the
IJ’s decision was flawed “because he failed to consider the
potential difficulty the children will have with regard to
their education and/or simply adjusting to life in another
country in assessing the hardship in this case.” See In re
Zakir Ahmed, No. A093 247 671, at *2 (B.I.A. June 22, 2010).
The BIA stated that it was “unpersuaded” by this argument,
because “[t]he types of ‘hardships’ to which [Ahmed
referred] generally do not constitute the exceptional and
extremely unusual hardship required under the statute.” Id.Because the BIA specifically stated that it was unpersuaded
by Ahmed’s argument regarding his children’s adjustment to
life in Bangladesh, we presume it considered all the
evidence regarding that issue. See Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d Cir. 2006)
(“[W]e presume that [the agency] has taken into account all
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of the evidence before [it], unless the record compellingly
suggests otherwise.”). Ahmed has not raised any other claim
of legal error with respect to the denial of cancellation.
II. Motion to Reopen
The BIA did not abuse its discretion in denying Ahmed’s
motion to reopen and reconsider. See Kaur v. BIA, 413 F.3d
232, 233 (2d Cir. 2005) (per curiam). “A motion to reopen
proceedings shall not be granted unless it appears to the
Board that evidence sought to be offered is material and was
not available and could not have been discovered or
presented at the former hearing,” and Ahmed did not
establish that the psychological report he submitted was
unavailable at the time of his proceedings before the IJ.
See 8 C.F.R. § 1003.2(c)(1); see also 8 U.S.C.
§ 1229a(c)(7)(B). Furthermore, the psychological report
provided only that Ahmed’s children are “mildly clinically
depressed and anxious” about Ahmed’s removal, an analysis
which is unlikely to affect the agency’s determination
regarding whether they would suffer exceptional and
extremely unusual hardship if their father were removed.
See Recinas, 23 I. & N. Dec. at 470 (“[T]he exceptional and
extremely unusual hardship standard for cancellation of
removal applicants constitutes a high threshold that is in
keeping with Congress’ intent to substantially narrow the
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class of aliens who would qualify for relief.”); Matter of
Coelho, 20 I. & N. Dec. 464, 472-73 (BIA 1992) (the BIA will
grant a motion to reopen only when it is satisfied that “if
proceedings before the IJ were reopened, with all the
attendant delays, the new evidence offered would likely
change the result in the case”). Moreover, to the extent
that Ahmed’s motion requested reconsideration, he did not
argue any errors of law or fact which would warrant
reconsideration. See 8 C.F.R. § 1003.2(b)(1); Jin Ming Liu
v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (“[T]he BIA
does not abuse its discretion by denying a motion to
reconsider where the motion merely repeats arguments that
the BIA has previously rejected.”).
For the foregoing reasons, the petitions for review are
DENIED. As we have completed our review, the pending
motions for stays of removal in these petitions are DENIED
as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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