Ibrahim Momin v. Attorney General United States ( 2017 )


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  •                                                                   NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ______________
    No. 16-4176
    ______________
    IBRAHIM MOMIN,
    Petitioner
    v.
    THE ATTORNEY GENERAL
    OF THE UNITED STATES OF AMERICA,
    Respondent
    ______________
    PETITION FOR REVIEW OF AN ORDER OF
    THE BOARD OF IMMIGRATION APPEALS
    (Agency No. A088-440-468)
    Immigration Judge: Honorable Mirlande Tadal
    ______________
    Submitted Under Third Circuit LAR 34.1(a)
    on June 15, 2017
    ______________
    Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges.
    (Opinion Filed: June 16, 2017)
    ______________
    OPINION*
    ______________
    KRAUSE, Circuit Judge.
    *
    This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
    does not constitute binding precedent.
    Ibrahim Momin, a native and citizen of Bangladesh, petitions for review of a
    decision by the Board of Immigration Appeals (BIA) denying his motion to reopen his
    removal proceedings. Because the BIA acted within its discretion in denying his motion,
    we will deny the petition.
    I.       Background
    Momin entered the United States without authorization in October 2010 and, soon
    thereafter, was charged as removable and referred to an Immigration Judge (IJ). Momin
    filed an application for asylum, withholding of removal, and relief under the Convention
    Against Torture, asserting a fear of political persecution due to his membership in the
    Bangladesh Nationalist Party (BNP). The IJ found Momin not credible and, in March
    2011, denied his request for relief. The BIA affirmed the IJ’s decision and removal
    order.
    In January 2014, Momin filed a motion with the BIA to reopen his immigration
    proceedings, claiming that he would be targeted for his political activism with the BNP if
    he were removed to Bangladesh and adducing evidence of his father’s murder in 2013 by
    members of the Awami League, a rival political party. The BIA denied Momin’s motion
    to reopen, concluding it rested on substantially the same claim of persecution for which
    he was previously found not credible. In June 2015, we affirmed the BIA’s decision.
    Momin v. Att’y Gen., 611 F. App’x 105 (3d Cir. 2015).
    Momin filed a second motion to reopen in May 2016. He acknowledged his
    motion was time- and number-barred under 
    8 C.F.R. § 1003.2
    (c)(2), which allows a
    2
    petitioner to file only one such motion “no later than 90 days after the date on which the
    final administrative decision was rendered in the proceeding sought to be reopened.” 
    Id.
    However, he argued that he qualified for an exception under 
    8 C.F.R. § 1003.2
    (c)(3)(ii),
    which exempts from the time and number limitations motions that rely on evidence of
    “changed circumstances arising in the country of nationality . . . if such evidence is
    material and was not available and could not have been discovered or presented at the
    previous hearing.” Id.; see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
    In support of his motion, Momin presented evidence of his active involvement
    with the BNP in the United States and a 2016 assault on his brother in Bangladesh,
    during which Awami League members allegedly threatened to kill Momin if he returned
    to Bangladesh and did not cease his political activism. Momin also submitted, inter alia,
    a letter from his brother regarding his brother’s confrontation with Awami League
    members, photographs of Momin engaged in political activities in the United States,
    news articles referencing BNP events in the United States, and the 2014 and 2015 U.S.
    State Department Reports on Human Rights in Bangladesh. In November 2016, the BIA
    denied his motion. This timely petition for review followed.
    II.    Standard of Review1
    The BIA has discretion to grant or deny a motion to reopen, and therefore our
    review of its decision is “highly deferential.” Guo v. Ashcroft, 
    386 F.3d 556
    , 561–62 (3d
    1
    The BIA had authority to review Momin’s motion under 
    8 C.F.R. § 1003.2
    (c),
    and we have jurisdiction over the petition for review pursuant to 
    8 U.S.C. § 1252
    (a).
    3
    Cir. 2004). We will only reverse the BIA’s decision as an abuse of discretion if it is
    “arbitrary, irrational, or contrary to law.” 
    Id. at 562
    . Similarly, we review the BIA’s
    factual findings in support of its decision under a “deferential substantial evidence
    standard.” Abdille v. Ashcroft, 
    242 F.3d 477
    , 483 (3d Cir. 2001). The BIA has “a duty to
    explicitly consider any country conditions evidence submitted by an applicant that
    materially bears on his claim,” Zheng v. Att’y Gen., 
    549 F.3d 260
    , 268 (3d Cir. 2008), and
    “must provide an indication that it considered such evidence, and if the evidence is
    rejected, an explanation as to why it was rejected,” Zhu v. Att’y Gen., 
    744 F.3d 268
    , 272
    (3d Cir. 2014). At the same time, however, the BIA need not “expressly parse or refute
    on the record each individual argument or piece of evidence offered by the petitioner,”
    and may assess evidence “in summary fashion without a reviewing court presuming that
    it has abused its discretion.” Zheng, 
    549 F.3d at 268
    .
    III.   Discussion
    Momin claims the BIA erred in two ways in denying his motion and that those
    errors give rise to a due process violation. We reject this claim because we perceive no
    underlying legal error.2
    First, Momin points to particular evidence that he alleges constitutes changed
    country conditions and asserts this evidence was not considered by the BIA. This
    challenge lacks merit. Contrary to Momin’s assertion that the BIA did not explicitly
    2
    Because we affirm the BIA’s decision as to changed country conditions, we need
    not address whether the BIA could also have concluded that Momin failed to make a
    prima facie case for relief.
    4
    mention “any of the evidence” he presented, Pet’r’s Br. 12, the BIA listed each piece of
    evidence Momin offered in support of his motion and explained in detail, making specific
    reference to the 2009 and 2015 State Department Reports, why that evidence did not
    reveal a material change in country conditions. See Zheng, 
    549 F.3d at 268
    . Thus, we
    are satisfied the BIA adequately considered Momin’s evidence.
    Second, Momin argues, to the extent his evidence was considered and deemed
    unpersuasive, the BIA erred in denying his motion because the evidence he presented
    does rise to the level of materially changed country conditions in Bangladesh—
    specifically, evidence that, since the IJ’s decision in 2011, the Awami League has
    become aware of his political activism in the United States and political violence has
    materially increased in Bangladesh. Neither of these proffers is sufficient for Momin to
    meet his “heavy burden of demonstrating” the facts alleged “would be sufficient, if
    proved, to change the result of [his asylum] application.” Khan v. Att’y Gen., 
    691 F.3d 488
    , 496-97 (3d Cir. 2012) (internal quotations marks omitted).
    As the BIA recognized, evidence of any change in Momin’s BNP participation in
    the United States, or the Awami League’s subsequent awareness of his new political
    activities, relates to changed personal circumstances, not changed country conditions in
    Bangladesh, and changed personal circumstances do not excuse an alien from the time
    and number limitations on a motion to reopen. 
    Id.
     at 497–98 (holding that a choice to
    engage in political activities is a changed personal circumstance insufficient to justify
    reopening). While Momin also cites the 2015 State Department Report, which described
    a limited increase in political violence in early 2015 in response to the prior year’s
    5
    elections, to show that political violence has materially increased in Bangladesh since the
    IJ’s decision in 2011, the 2009 State Department Report, included in the record before the
    IJ, described a similar spike in political violence after the country’s 2008 elections. Thus,
    as the BIA observed, the 2015 Report merely revealed that “violence is, and has been, a
    frequent feature of political activity in Bangladesh,” and the “reports of violence with
    regard to elections and political participation in Bangladesh” at the time of Momin’s
    motion to reopen were comparable to those available prior to his 2011 hearing. A.R. 4.
    Momin also identifies his brother’s 2016 assault by the Awami League as evidence of
    increased violence in Bangladesh, but we have previously held that State Department
    Reports are “the most appropriate and perhaps the best resource” for assessing country
    conditions. Zubeda v. Ashcroft, 
    333 F.3d 463
    , 477–78 (3d Cir. 2003) (citation omitted).
    As such, we will not disturb the BIA’s determination to afford them greater weight than
    Momin’s anecdotal evidence.
    In sum, the evidence Momin presents does not establish that political violence in
    Bangladesh has materially increased, but rather that it has merely continued, or at most,
    risen incrementally since the IJ’s decision in 2011. See Pllumi v. Att’y Gen., 
    642 F.3d 155
    , 161 (3d Cir. 2011) (affirming the BIA’s finding that a continuation of violent
    conditions did not demonstrate a material change in conditions); Parvez v. Keisler, 
    506 F.3d 93
    , 97–98 (1st Cir. 2007) (indicating that consistent reports of political violence in
    Bangladesh did not establish sufficiently changed conditions); Matter of S-Y-G-, 
    24 I. & N. Dec. 247
    , 253 (BIA 2007) (explaining that an “incremental or incidental” change in
    country conditions is immaterial). Accordingly, the BIA did not abuse its discretion,
    6
    much less violate Momin’s due process rights, in finding no evidence of materially
    changed country conditions sufficient to justify reopening.
    III.   Conclusion
    For the foregoing reasons, we will deny Momin’s petition for review.
    7