Saran v. Holder ( 2011 )

11-78-ag
Saran v. Holder
BIA
A072 418 519
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 November, two thousand eleven.
5
6 PRESENT:
7 ROGER J. MINER,
8 ROBERT D. SACK,
9 PETER W. HALL,
10 Circuit Judges.
11 _________________________________________
12
13 KAZI SARAN, a.k.a. KAZI TOFAIL ISLAM,
14 Petitioner,
15
16 v. 11-78-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Amy Nussbaum Gell, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Cindy S. Ferrier, Senior
28 Litigation Counsel; Sunah Lee, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
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 Kazi Saran, a native and citizen of
6 Bangladesh, seeks review of a December 9, 2010, order of the
7 BIA denying his motion to reopen. In re Kazi Saran, a.k.a.
8 Kazi Tofail Islam, No. A072 418 519 (B.I.A. Dec. 9, 2010).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history of this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). A person ordinarily may file only one
14 motion to reopen and must do so within 90 days of the final
15 administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C);
16 8 C.F.R. § 1003.2(c)(2). However, there is no time or
17 numerical limitation if the individual establishes
18 materially “changed country conditions arising in the
19 country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
20 also 8 C.F.R. § 1003.2(c)(3)(ii).
21 The BIA did not abuse its discretion in finding that
22 Saran failed to establish material changed country
2
1 conditions in Bangladesh sufficient to excuse the untimely
2 filing of his motion to reopen. Although the BIA
3 acknowledged a rise in Islamist influence and militancy,
4 inasmuch as Saran failed to cite any evidence in the record
5 to support his assertion that expatriates are at greater
6 risk of attack by Islamist militants than any other
7 individual in Bangladesh, the BIA reasonably concluded that
8 any change was not material to his assertion that he would
9 be persecuted based on his purported social group. See
10 Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999);
11 see also 8 C.F.R. § 1003.2(C)(3)(ii).
12 Saran also claims that he will be subjected to torture
13 by government officials who are aware of and collude with
14 militants. As the BIA found, the record does not
15 demonstrate government acquiescence to activities of
16 militants, and thus, the BIA reasonably found that Saran had
17 failed to demonstrate prima facie eligibility for CAT
18 relief. See Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir.
19 2004).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
3
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
4