Bin Rehman v. Wilkinson ( 2021 )

18-2671
Bin Rehman v. Wilkinson
BIA
A098 424 207/208
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 11th day of February, two thousand twenty-one.
5
6 PRESENT:
7 DENNIS JACOBS,
8 ROSEMARY S. POOLER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 MALIK NAVEED BIN REHMAN, ZAHIDA
14 ALTAF,
15 Petitioners,
16
17 v. 18-2671
18 NAC
19 ROBERT M. WILKINSON, ACTING
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent. 1
22 _____________________________________
23
24 FOR PETITIONERS: Glenn L. Formica, New Haven, CT.
25
26 FOR RESPONDENT: Joseph H. Hunt, Acting Assistant
27 Attorney General; Shelley R. Goad,
28 Assistant Director; Russell J.E.
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney
General Robert M. Wilkinson is automatically substituted as Respondent.
1 Verby, Senior Litigation Counsel,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
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 Petitioners Malik Naveed Bin Rehman and Zahida Altaf,
11 natives and citizens of Pakistan, seek review of an August
12 29, 2018, decision of the BIA, denying their motion to reopen.
13 In re Malik Naveed Bin Rehman, Zahida Altaf, Nos. A098 424
14 207/208 (B.I.A. Aug. 29, 2018). We assume the parties’
15 familiarity with the underlying facts and procedural history.
16 The applicable standards of review are well established.
17 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
18 2008). In their motion to reopen, Petitioners argued that,
19 as asserted in their underlying asylum application, they
20 continue to fear that Altaf’s family will harm them because
21 the family disapproved of their marriage due to Bin Rehman’s
22 caste. They argued that honor killings were increasing in
23 Pakistan and that their former counsel was ineffective
24 because he failed to provide the immigration judge (“IJ”)
25 evidence they had submitted in support of their Canadian
2
1 asylum application, letters from their relatives, or evidence
2 of honor killings in Pakistan.
3 It is undisputed that Petitioners’ 2018 motion was
4 untimely because it was filed more than seven years after
5 their removal order became final in 2010. See 8 U.S.C.
6 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although the
7 time limitation on a motion to reopen may be excused if the
8 motion seeks to apply for asylum based on a material change
9 in conditions in the country of removal or alleges a valid
10 claim of ineffective assistance of counsel, 8 U.S.C.
11 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii);
12 Iavorski v. U.S. INS, 232 F.3d 124, 134–35 (2d Cir. 2000),
13 the BIA did not err in finding that Petitioners’ evidence was
14 insufficient to excuse the time limit.
15 “[T]o prevail on a motion to reopen alleging changed
16 country conditions where the persecution claim was previously
17 denied based on an adverse credibility finding . . ., the
18 [movant] must either overcome the prior determination or show
19 that the new claim is independent of the evidence that was
20 found to be not credible.” Matter of F-S-N-, 28 I. & N. Dec.
21 1, 3 (BIA 2020); see also Kaur v. BIA, 413 F.3d 232, 234 (2d
22 Cir. 2005) (“[E]vidence submitted by petitioner in support of
3
1 . . . motion was not ‘material’ because it did not rebut the
2 adverse credibility finding that provided the basis for the
3 IJ’s denial of petitioner’s underlying asylum application.”).
4 Petitioners have abandoned any challenge to the BIA’s finding
5 that they did not overcome the agency’s underlying adverse
6 credibility determination by not arguing this issue in their
7 brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1,
8 545 n.7 (2d Cir. 2005). Regardless, that finding was not in
9 error because the evidence they submitted in support of
10 reopening did not address or explain the inconsistent
11 evidence underlying the adverse credibility determination.
12 Because this finding is dispositive, see Kaur, 413 F.3d at13 234; Matter of F-S-N-, 28 I. & N. Dec. at 3, we do not reach
14 the BIA’s alternative bases for denying the motion, see INS
15 v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
16 courts and agencies are not required to make findings on
17 issues the decision of which is unnecessary to the results
18 they reach.”).
19 We also find no error in the BIA’s decision declining to
20 excuse the time limit based on Petitioners’ claim of
21 ineffective assistance. Petitioners failed to show that they
22 exercised the requisite due diligence because they did not
4
1 demonstrate that they took any action for over seven years
2 after the BIA issued its order of removal. See Rashid v.
3 Mukasey, 533 F.3d 127, 132 (2d Cir. 2008) (providing that
4 petitioners are required to show the exercise of due diligence
5 during “both the period of time before the ineffective
6 assistance of counsel was or should have been discovered and
7 the period from that point until the motion to reopen is
8 filed”); see also Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d
9 Cir. 2007) (collecting cases for the proposition that “a
10 petitioner who waits two years or longer to take steps to
11 reopen a proceedings has failed to demonstrate due
12 diligence”). The record belies Petitioners’ contention that
13 they were unaware of counsel’s alleged ineffective assistance
14 given their statements at their hearing before the IJ blaming
15 counsel for failing to submit certain evidence. Petitioners
16 also do not demonstrate the requisite prejudice by failing to
17 submit either the missing evidence or evidence rebutting the
18 underlying credibility determination. See Rabiu v. INS, 41
19 F.3d 879, 882–83 (2d Cir. 1994) (providing that actual
20 prejudice requires a showing of prima facie eligibility for
21 relief).
5
1 Accordingly, because Petitioners did not rebut the
2 agency’s underlying adverse credibility determination or
3 satisfy the requirements for an ineffective assistance claim,
4 the BIA did not abuse its discretion in denying their motion
5 to reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i);
6 8 C.F.R. § 1003.2(c)(2); see also Kaur, 413 F.3d at 234.
7 For the foregoing reasons, the petition for review is
8 DENIED. All pending motions and applications are DENIED and
9 stays VACATED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe,
12 Clerk of Court
6