Hassan v. Barr ( 2020 )

14-1867 (L)
Hassan v. Barr
BIA
Hom, IJ
A088 935 407/408/410/411
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 TO 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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 13th day of July, two thousand twenty.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 MINHAJ HASSAN, SAIKA HASSAN,
14 SADID HASSAN, SAMARA HASSAN,
15 Petitioners, 1
16
17 v. 14-1867 (L),
18 14-4733 (Con)
19 NAC
20 WILLIAM P. BARR, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
1Abrar Hassan has been removed as a petitioner because his removal proceedings
were terminated after he adjusted to lawful permanent resident status. In re
Abrar Hassan, No. A 088 935 409 (B.I.A. Nov. 26, 2014).
1 FOR PETITIONER: Brian H. Getson, Getson & Schatz,
2 P.C., Philadelphia, PA.
3
4 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
5 General; Kohsei Ugumori, Senior
6 Litigation Counsel; Jesse Lloyd
7 Busen, Trial Attorney, Office of
8 Immigration Litigation, United
9 States Department of Justice,
10 Washington, DC.
11 UPON DUE CONSIDERATION of these petitions for review of
12 two Board of Immigration Appeals (“BIA”) decisions, it is
13 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
14 review in the lead case, 14-1867, is DISMISSED in part and
15 GRANTED in part, and the petition for review in the
16 consolidated case, 14-4733, is DENIED.
17 Petitioners Minhaj Hassan (“Hassan”) and Saika Hassan,
18 natives and citizens of Bangladesh, and Sadid Hassan and
19 Samara Hassan, seek review of two decisions: (1) a May 6,
20 2014, decision of the BIA affirming a May 25, 2012, decision
21 of an Immigration Judge (“IJ”) denying Hassan’s application
22 for asylum, withholding of removal, and relief under the
23 Convention Against Torture (“CAT”) and ordering their
24 removal, and (2) a November 26, 2014, decision of the BIA
25 denying their motion to reopen and reconsider. In re Minhaj
26 Hassan, et al., Nos. A 088 935 407/408/409/410/411 (B.I.A.
2
1 May 6, 2014), aff’g Nos. A 088 935 407/408/409/410/411 (Immig.
2 Ct. N.Y. City May 25, 2012); In re Minhaj Hassan, et al.,
3 Nos. A 088 935 407/408/410/411 (B.I.A. Nov. 26, 2014). We
4 assume the parties’ familiarity with the underlying facts and
5 procedural history in this case.
6 I. Lead Case, 14-1867
7
8 We have reviewed the IJ’s decision as modified and
9 supplemented by the BIA. Wala v. Mukasey, 511 F.3d 102, 105
10 (2d Cir. 2007).
11 A. Asylum
12 An alien is ineligible for asylum “unless the alien
13 demonstrates by clear and convincing evidence that the
14 application has been filed within 1 year after the date of
15 the alien’s arrival in the United States.” 8 U.S.C.
16 § 1158(a)(2)(B). Hassan’s asylum application was untimely
17 because he entered the United States in October 2008 but did
18 not file for asylum until January 2011. An application may
19 be considered outside the one-year deadline, however, “if the
20 alien demonstrates . . . the existence of changed
21 circumstances which materially affect the applicant’s
22 eligibility for asylum or extraordinary circumstances
3
1 relating to the delay,” id. § 1158(a)(2)(D), and the
2 application is filed “within a reasonable period given those
3 circumstances,” 8 C.F.R. § 1208.4(a)(4)(ii), (a)(5).
4 Extraordinary circumstances can include ineffective
5 assistance of counsel. 8 C.F.R. § 1208.4(a)(5)(iii).
6 Our jurisdiction to review the agency’s findings
7 regarding the timeliness of an asylum application and the
8 circumstances excusing the untimeliness is limited to
9 “constitutional claims or questions of law.” See 8 U.S.C.
10 §§ 1158(a)(3), 1252(a)(2)(D). For jurisdiction to attach,
11 such claims must be colorable. Barco-Sandoval v. Gonzales,
12 516 F.3d 35, 40–41 (2d Cir. 2008). We review constitutional
13 claims and questions of law de novo. Pierre v. Holder, 588
14 F.3d 767, 772 (2d Cir. 2009).
15 Hassan argues that the agency erred as a matter of law
16 in pretermitting asylum as untimely because the applicable
17 regulations and policies of the Department of Homeland
18 Security (“DHS”) prohibit an arriving alien from filing an
19 asylum application prior to a positive credible fear
20 determination following a credible fear interview, and Hassan
21 did not receive a determination until May 2010, more than a
4
1 year after his arrival in October 2008. See 8 U.S.C.
2 § 1225(b)(1)(A)(ii); 8 C.F.R. § 208.30(f). The applicable
3 statutory and regulatory framework prevented him from filing
4 a defensive application with the immigration court prior to
5 a positive credible fear determination and his placement in
6 removal proceedings, but there was no barrier to filing an
7 affirmative asylum application by mailing an application to
8 a service center. 8 C.F.R. § 1208.4(b). Accordingly, there
9 was no legal impediment to his filing.
10 As to Hassan’s alternate argument that ineffective
11 assistance of counsel excused his untimely filing, the agency
12 did not err in declining to accept that argument because
13 Hassan did not comply with the procedural requirements of
14 such a claim. See Matter of Lozada, 19 I. & N. Dec. 637 (BIA
15 1988). He complied with some of the procedural requirements
16 in a subsequent motion to reconsider at issue in the
17 consolidated petition but, as discussed later, the BIA did
18 not abuse its discretion by denying that motion as untimely.
19 B. Withholding of Removal
20 We remand to the agency for further consideration of
21 Hassan’s claim for withholding of removal. Withholding of
5
1 removal is a mandatory form of relief that requires the
2 applicant “to establish that his or her life or freedom would
3 be threatened in the proposed country of removal on account
4 of race, religion, nationality, membership in a particular
5 social group, or political opinion.” 8 C.F.R. § 1208.16(b);
6 see also Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d
7 Cir. 2004). Past persecution creates a rebuttable
8 presumption of a future threat. 8 C.F.R. § 1208.16(b)(1).
9 We review de novo whether the harm an applicant suffered
10 constitutes persecution. Huo Qiang Chen v. Holder, 773 F.3d
11 396, 403 (2d Cir. 2014); see also Manzur v. U.S. Dep’t of
12 Homeland Sec., 494 F.3d 281, 288 (2d Cir. 2007).
13 Hassan alleged the following harm: (1) men associated
14 with his wife’s Muslim family kidnapped, beat, and threatened
15 to kill him unless he converted to Islam, which he did;
16 (2) contractors he worked with threatened and beat him
17 because he came from a Hindu family, and the police did not
18 help him when he complained; and (3) Islamic terrorists came
19 to his home, cut his neck, and forcibly tried to circumcise
20 him because he came from a Hindu family and was married to a
21 Muslim. The IJ denied withholding largely on credibility
6
1 grounds, finding that he was not credible and that he failed
2 to submit credible evidence of his mistreatment as needed to
3 meet his burden of proof. The IJ also characterized the harm
4 Hassan experienced as “discrimination and scorn,” slaps,
5 pushes, and a “family problem” that did not rise to the level
6 of persecution. App’x 24.
7 The BIA assumed Hassan’s credibility, did not mention
8 corroboration or burden, and concluded that “the mistreatment
9 [Hassan] described [did] not rise to the level of
10 persecution.” App’x 12. The BIA did not provide any further
11 explanation for this conclusion or discuss whether it had
12 considered all the harm Hassan alleged as opposed to the IJ’s
13 characterization of the harm, given that the BIA assumed
14 Hassan’s credibility when the IJ did not. Such a lack of
15 analysis warrants remand. See Poradisova v. Gonzales, 420
16 F.3d 70, 77 (2d Cir. 2005) (“Despite our generally deferential
17 review of IJ and BIA opinions, we require a certain minimum
18 level of analysis from the IJ and BIA opinions denying asylum,
19 and indeed must require such if judicial review is to be
20 meaningful.”).
21 Further, Hassan’s allegations of harm, which are
7
1 considered credible because the BIA assumed credibility, were
2 more than mere slaps and pushes. The harm included
3 kidnapping, beatings, and threats that could rise to the level
4 of persecution. See Ivanishvili v. U.S. Dep’t of Justice,
5 433 F.3d 332, 342 (2d Cir. 2006) (addressing distinction
6 between harassment and persecution and remanding because
7 “violent conduct generally goes beyond the mere annoyance and
8 distress that characterize harassment”).
9 Accordingly, because the harm Hassan suffered could rise
10 to the level of persecution and the BIA failed to provide a
11 reasoned analysis, we remand for further consideration of
12 withholding of removal. Because a finding of past
13 persecution would result in a presumption of future
14 persecution, we do not address Hassan’s claim of future
15 persecution. See 8 C.F.R. § 1208.16(b)(1), (2). Because we
16 remand for further consideration of Hassan’s claim for
17 withholding of removal, we decline to reach the merits of
18 Hassan’s CAT claim at this time. INS v. Bagamasbad, 429 U.S.
19 24, 25 (1976) (“As a general rule courts and agencies are not
20 required to make findings on issues the decision of which is
21 unnecessary to the results they reach.”). We note that
8
1 nothing precludes the agency from revisiting the CAT claim on
2 remand or from considering the country conditions evidence
3 that Hassan submitted with his motion to reopen in
4 reevaluating withholding of removal.
5 II. Consolidated Case, 14-4733, Motion to Reopen and
6 Reconsider
7
8 We review the BIA’s denial of a motion to reconsider or
9 reopen for abuse of discretion but review factual findings
10 regarding country conditions for substantial evidence. See
11 Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008)
12 (motion to reopen and country conditions findings); Jin Ming
13 Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (motion to
14 reconsider).
15 A. Motion to Reconsider
16 The BIA did not err in construing Hassan’s motion as a
17 request for reconsideration to the extent that he reiterated
18 arguments from his prior appeal to the BIA about DHS’s delay
19 in issuing a credible fear determination and ineffective
20 assistance of counsel. “A motion for reconsideration is a
21 request that the Board reexamine its decision in light of
22 additional legal arguments, a change of law, or perhaps an
23 argument or aspect of the case which was overlooked.” Jin
9
1 Ming Liu, 439 F.3d at 111 (internal quotation marks and
2 citation omitted); see also 8 U.S.C. § 1229a(c)(6)(C) (“The
3 motion shall specify the errors of law or fact in the previous
4 order and shall be supported by pertinent authority.”); 8
5 C.F.R. § 1003.2(b)(1) (same). Accordingly, because the
6 motion was filed more than 30 days after the prior decision,
7 the BIA did not abuse its discretion in denying the motion as
8 untimely as to these claims. See 8 U.S.C. § 1229a(c)(6)(B);
9 8 C.F.R. § 1003.2(b)(2).
10 B. Motion to Reopen
11 Hassan’s motion was timely to the extent that it sought
12 reopening because he filed it within 90 days of the May 2014
13 BIA decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
14 § 1003.2(c)(2). The BIA, however, did not err in denying
15 Hassan’s motion to reopen; although the evidence was new in
16 that it postdated his hearing before the IJ, it was not
17 material because it reinforced country conditions evidence
18 already in the record.
19 “[A] motion to reopen shall state the new facts that will
20 be proven at a hearing to be held if the motion is granted,
21 and shall be supported by affidavits or other evidentiary
10
1 material.” 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R.
2 § 1003.2(c)(1). “A motion to reopen proceedings shall not
3 be granted unless . . . that evidence sought to be offered is
4 material and was not available and could not have been
5 discovered or presented at the former hearing.” 8 C.F.R.
6 § 1003.2(c)(1); see also INS v. Abudu, 485 U.S. 94, 104 (1988)
7 (finding that BIA may deny a motion to reopen if “the movant
8 has not introduced previously unavailable, material
9 evidence”).
10 The evidence did not demonstrate new or different
11 conditions for Hindus in Bangladesh, but rather, as the BIA
12 found, it reflected that violence against Hindus, especially
13 during election seasons, has been a longstanding problem in
14 Bangladesh. Hassan’s original country conditions evidence
15 established that religious tensions between Hindus and
16 Muslims have been an ongoing concern in Bangladesh for many
17 years, and that Hindus were targeted during elections before
18 Hassan’s 2012 hearing. See, e.g., Certified Administrative
19 Record at 559, 569–70 (2009 U.S. State Dep’t Human Rights
20 Rep. noting that “[v]iolence against religious and ethnic
21 minorities still occurred” and detailing discrimination and
11
1 attacks on Hindus, their homes, and their places of worship);
2 592 (2010 article noting violence against Hindus during the
3 1992 and October 2001 elections); 625–29 (undated report
4 printed in 2011 stating that “[e]thnic cleansing of
5 minorities” has occurred since 1947 and describing violence
6 against minorities during the October 2001 election, assaults
7 and murders of Hindus, and the burning of Hindu-owned homes
8 in 2002).
9 The evidence that Hassan submitted with his motion to
10 reopen reflected similar conditions. The evidence confirms
11 that religious tension and violence against Hindus existed
12 before Hassan’s hearing, and that societal and political
13 violence flares up around elections. Much of the evidence
14 concerns violence against Hindus after a 2013 execution of an
15 Islamist leader and during the January 2014 election. Id.
16 at 110 (2013 U.S. Comm’n on Int’l Religious Freedom Rep.),
17 112 (2014 U.S. Comm’n on Int’l Religious Freedom Rep.), 145
18 (2013 U.S. State Dep’t Human Rights Rep.). But, as
19 recognized in a 2014 article by an Amnesty International
20 researcher about the January 2014 election violence,
21 “[a]ttacks on Hindus and Bangladesh are nothing new” and
12
1 tensions between Hindus and Muslims date back to at least
2 1947. Id. at 158–59 (explaining that Hindus are targeted
3 around election seasons and describing serious violence
4 against Hindus during a 2001 election). And while a 2014
5 Human Rights Watch Report states that the January 2014
6 elections “were the most violent in the country’s history,”
7 this violence mostly impacted political actors, and there was
8 little evidence that Hindus were targeted more than any other
9 group. Id. at 186–91, 198, 252.
10 Thus, on this record, the BIA did not abuse its
11 discretion by declining to reopen. See Abudu, 485 U.S. at
12 104 (requiring new and material evidence for reopening); Jian
13 Hui Shao, 546 F.3d at 168 (requiring movant to show that new
14 evidence “would likely alter the result in [his] case”).
15 Hassan’s remaining arguments that the BIA improperly took
16 administrative notice of the 2012 State Department Report and
17 failed to fully consider his country conditions evidence are
18 without merit. The BIA was permitted to take notice of the
19 2012 report because those facts were not the sole basis for
20 denying the motion. See Jian Hui Shao, 546 F.3d at 166–68
21 (finding no due process violation when the BIA took
13
1 administrative notice of a State Department Report because it
2 did not rely exclusively on facts in that report to deny
3 relief); cf. Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196,
4 198 (2d Cir. 2007) (The BIA “exceeds its allowable discretion
5 when . . . [it denies] a motion to reopen based solely on
6 facts of which it took administrative notice”). And the
7 BIA’s decision shows that it considered Hassan’s evidence
8 even if it did not expressly cite to specific incidents or
9 statements. See Jian Hui Shao, 546 F.3d at 169 (holding that
10 agency is not required to “expressly parse or refute on the
11 record each individual argument or piece of evidence
12 offered”) (internal quotation marks omitted).
13 For the foregoing reasons, the petition for review in
14 the lead case is DISMISSED in part as to asylum. The lead
15 petition is otherwise GRANTED, the BIA’s decision is VACATED,
16 and case is REMANDED for further proceedings consistent with
17 this decision. The consolidated petition is DENIED. All
18 pending motions and applications are DENIED and stays
19 VACATED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe,
22 Clerk of Court
14