Fuad v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHABBIR AHMED FUAD, No. 22-845
Agency No.
Petitioner, A206-911-272
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 8, 2023 **
San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and BENNETT,***
Senior District Judge.
Petitioner Shabbir Ahmed Fuad (“Fuad”), a native and citizen of
Bangladesh, seeks review of the Board of Immigration Appeals’ (“BIA’s”) denial
of his untimely motion to reopen proceedings. The central issue raised by this
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard D. Bennett, United States Senior District
Judge for the District of Maryland, sitting by designation.
petition is whether Fuad has presented evidence of changed country conditions
that materially affect his eligibility for relief, as necessary to justify an exception
to the 90-day filing deadline. We have jurisdiction under 8 U.S.C. § 1252(b), and
we deny the petition for review.
Fuad entered the United States on October 8, 2014, and applied for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). At his merits hearing, he testified that he was a supporter of the
Bangladesh National Party and that he had been attacked by members of a rival
party, the Awami League. An Immigration Judge (“IJ”) concluded that Fuad did
not establish past persecution or a well-founded fear of future persecution, that
he could safely relocate within Bangladesh, and that he had offered no evidence
of government acquiescence. Accordingly, the IJ denied his application, the BIA
upheld that denial, and this Court denied Fuad’s petition for review. Six years
later, Fuad filed a motion to reopen proceedings, offering evidence that that
members of the Awami League had confronted and attacked his family members
following the denial of his application. The BIA denied this motion after finding
that Fuad’s evidence failed to address the IJ’s dispositive findings. Fuad now
seeks review of that denial.
As Fuad filed his motion six years after his application was initially denied,
he must show that changed country conditions materially affect his eligibility for
relief. Ordinarily, a motion to reopen must be filed “within 90 days of the date of
entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i).
2
This deadline does not apply to a motion to reopen “based on changed country
conditions arising in the country of nationality.” Id. § 1229a(c)(7)(C)(ii). As this
Court outlined in Agonafer v. Sessions, “a petitioner must clear four hurdles” to
establish this exception, requiring him to:
(1) produce evidence that conditions have changed in the country of
removal; (2) demonstrate that the evidence is material; (3) show that
the evidence was not available and would not have been discovered
or presented at the previous hearings; and (4) “demonstrate that the
new evidence, when considered together with the evidence
presented at the original hearing, would establish prima facie
eligibility for the relief sought.”
859 F.3d 1198, 1204 (9th Cir. 2017) (quoting Toufighi v. Mukasey, 538 F.3d 988,
996 (9th Cir. 2008)); accord Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004)
(“The critical question is . . . whether circumstances have changed sufficiently
that a petitioner who previously did not have a legitimate claim for asylum now
has a well-founded fear of future persecution.”).
Fuad argues that conditions have changed in Bangladesh because his
family has suffered additional threats and violence following the BIA’s denial of
his first application in 2015. Specifically, he offered evidence that members of
the Awami League robbed his father’s store in 2017, threatened his brother in
2019, threatened his wife in 2020, and assaulted his father in 2021. On three of
these occasions, the assailants allegedly asked about Fuad’s location and
threatened to kill him. The BIA denied Fuad’s motion after concluding that this
new evidence did not “materially affect his eligibility for relief,” as it failed to
address many of the BIA’s reasons for denying his initial application. We review
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this decision for an abuse of discretion. See Rubalcaba v. Garland, 998 F.3d
1031, 1035 (9th Cir. 2021).
Asylum and Withholding of Removal: Fuad fails to meaningfully
challenge the BIA’s dispositive finding that he could relocate within Bangladesh
to avoid persecution. To qualify for asylum or withholding of removal based on
a reasonable fear of future persecution, the applicant must show that he could not
reasonably relocate within the country of removal. 8 C.F.R. § 1208.13(b)(3)(iii);
Hussain v. Rosen, 985 F.3d 634, 648 (9th Cir. 2021). In its first decision, the BIA
found that Fuad failed to make this showing, as he suffered no harm at the hands
of the Awami League after relocating to his in-laws’ home elsewhere in
Bangladesh.
Fuad offered no arguments or evidence addressing internal relocation in
his motion to reopen. Although he stated, in the context of his CAT claim, that
the Awami League “are now a ruling party in Bangladesh,” the BIA deemed the
relocation issue inadequately presented because Fuad offered no arguments
regarding how this might impact the reasonableness of internal relocation. 1 As
1
Whether the alleged persecution was committed by the governing party
could affect the evaluation of the petitioner’s claims. See, e.g., Kaur v. Wilkinson,
986 F.3d 1216, 1228 (9th Cir. 2021) (holding that when a petitioner is persecuted
by members “of a major political party . . . after its rise to power from a minority
voting bloc in the legislature to the head of government, the source of the
persecution is the government itself”); Singh v. Whitaker, 914 F.3d 654, 661 (9th
Cir. 2019) (holding that the agency erred by failing to afford the petitioner a
nationwide presumption of future persecution, given the petitioner’s testimony
that he suffered persecution at the hands of the government). However, Fuad has
4
Fuad makes no substantive argument that the BIA erred in this waiver
determination, Fuad has forfeited any contention that he exhausted his
administrative remedies on this issue.2 See Cui v. Garland, 13 F.4th 991, 999 n.6
(9th Cir. 2021); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Convention Against Torture: Fuad has also forfeited any challenge to
the denial of his claim for CAT protection. To qualify for relief under the CAT,
the applicant must show that “it is more likely than not that he or she would be
tortured if removed to the proposed country of removal,” Hamoui v. Ashcroft, 389
F.3d 821, 826 (9th Cir. 2004) (quoting 8 C.F.R. § 208.16(c)(2)), and that he or
she would likely be “tortured with the consent or acquiescence of a public
official,” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020); see 8
C.F.R. § 208.18(a)(1). In his motion to reopen, Fuad argued that the Awami
League’s ascension to power in Bangladesh indicates that he will be tortured with
the consent or acquiescence of the government. He also claimed that the police
refused to accept a report from his father after he was beaten by members of the
Awami League. The BIA found this evidence insufficient to show that Fuad
pointed to no evidence that the Awami League ascended to power locally or
nationally after the BIA’s 2015 denial of his application.
2
Nor can Fuad shift the burden of proof on this issue through a showing of
past persecution. See Singh, 914 F.3d at 659 (holding that a showing of past
persecution shifts the burden to the government to establish that the petitioner
“can reasonably relocate internally to an area of safety”). Fuad did not argue past
persecution in his motion to reopen, and the new incidents Fuad alleges do not
compel a finding of past persecution in any event. See, e.g., Halim v. Holder, 590
F.3d 971, 975–76 (9th Cir. 2009); Wakkary v. Holder, 558 F.3d 1049, 1059–60
(9th Cir. 2009).
5
would be tortured with the consent or acquiescence of the government. As Fuad
fails to challenge this reasoning in his petition for review in our court, he has
forfeited further consideration of this issue. See Mu v. Barr, 936 F.3d 929, 936
(9th Cir. 2019).3
PETITION DENIED.
3
In Fuad’s statement of facts, he “respectfully urges this honorable Court
to find that since AL cadres, who are the ruling party in the Government of
Bangladesh, have continued to persecute him . . . that his claim for withholding
of removal under the CAT should be reopened.” However, Fuad offers no
substantive arguments to support this assertion, and does not mention the CAT or
rebut the BIA’s findings anywhere in his analysis. See Martinez-Serrano v. INS,
94 F.3d 1256, 1259 (9th Cir. 1996) (“Issues raised in a brief that are not supported
by argument are deemed abandoned.”).
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