Hussain Mosharof v. U.S. Attorney General

Case: 18-12447 Date Filed: 05/28/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12447
Non-Argument Calendar
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Agency No. A206-366-254
HUSSAIN MOSHAROF,
a.k.a. Mosharof Hussain,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 28, 2019)
Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Mosharof Hossain,1 a native and citizen of Bangladesh, seeks review of the
BIA’s denial of his motion to reopen. He contends that the Board of Immigration
Appeals (“BIA”) abused its discretion by not granting his motion because it (1)
failed to properly analyze the record and mischaracterized the evidence based on a
prior adverse credibility finding, (2) improperly gave affidavits in support of his
motion minimal weight, (3) required to him to meet a higher burden of proof by
requiring him to show that the conditions in Bangladesh had “significantly
worsened,” and (4) abused its discretion by not finding that he was eligible for
withholding of removal and CAT relief based on the newly submitted evidence.
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). Our review “is limited
to determining whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.” Id. (citation and
quotation marks omitted). “Generally, [m]otions to reopen are disfavored,
especially in a removal proceedings, where, as a general matter, every delay works
to the advantage of the [removable] alien who wishes merely to remain in the
United States.” Id. (citation and quotation marks omitted).
1
The caption for this case and many documents in the administrative record spell
Hossain’s last name “Hussain.” However, Hossain filed a motion with the IJ to correct the
spelling and order of his name, which indicated that the correct spelling of his last name was
“Hossain.” Accordingly, we use Hossain.
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We are required to “inquire into our subject matter jurisdiction sua sponte.”
Gaksakuman v. U.S. Atty. Gen., 767 F.3d 1164, 1168 (11th Cir. 2014). A petition
to review a removal order must be made within 30 days after the date of the final
order of removal. 8 U.S.C. § 1252(b)(1). We have held that we lack jurisdiction to
review earlier trips through immigration proceedings. Bing Quan Lin v. U.S.
Attorney General, 881 F.3d 860, 870 (11th Cir. 2018). In Gaksakuman, we held
that we lacked jurisdiction to review the merits of a removal order because,
although the petitioner filed a petition to review that order, the petition was
subsequently dismissed and the 30-day window to file a petition for review had
passed. 767 F.3d at 1168-69.
A motion to reopen “shall state the new facts that will be proven at a hearing
to be held if the motion is granted, and shall be supported by affidavits or other
evidentiary material.” INA § 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B);
Verano-Velasco v. U.S. Att’y Gen., 456 F.3d 1372, 1376 (11th Cir. 2006). Motions
to reopen may be granted if there is new evidence that is material and was not
available and could not have been discovered or presented at the removal hearing.
See 8 C.F.R. § 1003.2(c)(1). To make such a showing, the alien “bears a heavy
burden, and must present evidence of such a nature that the BIA is satisfied that if
proceedings before the IJ were reopened, with all attendant delays, the new
evidence offered would likely change the result in the case.” Ali, 443 F.3d at 813
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(quotation omitted). The BIA may deny a motion to reopen, if the alien fails to
establish a prima facie case. Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir.
2001).
To be eligible for withholding of removal under the INA, an alien must
show that his “life or freedom would be threatened in [the country of removal]
because of the alien’s race, religion, nationality, membership in a particular social
group, or political opinion.” INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).
The alien has the burden of proof, and must show that he or she would more
likely than not be persecuted if returned to the country of removal. Id.;
D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004). The alien
must also show that the persecution will be “because of” one of the five protected
grounds. Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004); See also
INA § 208(b)(1)(B)(i); 8 U.S.C. § 1158(b)(1)(B)(i) (noting, in asylum context, that
applicant must establish that a protected ground “was or will be at least one central
reason for persecuting the applicant”). Evidence of private violence, or that a
person would be the victim of criminal activity, “does not constitute evidence of
persecution on account of a statutorily protected ground.” Cendejas Rodriguez v.
U.S. Att’y Gen., 735 F.3d 1302, 1310 (11th Cir. 2013).
A “particular social group” denotes a group of persons “who share a
common immutable characteristic that the members of the group either cannot
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change, or should not be required to change because it is fundamental to their
individual identities or consciences,” and such group cannot be “too numerous or
inchoate.” Id. (quotation marks omitted). An applicant must show either that he or
she would be singled out for persecution, or that there is a pattern or practice of
persecuting a group of similarly situated persons on account of a protected ground
and that the applicant is so identified with that group that it is more likely than not
that his life or freedom would be threatened if he or she returned. 8 C.F.R. §
208.16(b)(2)(i), (ii).
To be eligible for CAT relief, the applicant must “establish that it is more
likely than not that he or she would be tortured if removed to the proposed country
of removal.” Id. § 208.16(c)(2). “Torture” is defined as
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
Id. § 208.18(a)(1). Thus, to obtain CAT relief, the applicant must demonstrate that
torture would be inflicted by the government or with the government’s consent or
acquiescence. Sanchez, 392 F.3d at 438.
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As an initial matter, to the extent that Hossain challenges the findings of the
BIA’s original order of removal, we lack jurisdiction to consider those claims.
Although Hossain filed a petition to review that order, we dismissed it for want of
prosecution in April 2018. That petition remains dismissed, and the 30-day
window to file a petition has since lapsed. Accordingly, we lack jurisdiction to
review the findings of the BIA in its original order of removal, specifically,
Hossain’s credibility.
Moreover, the BIA did not abuse its discretion when it denied Hossain’s
motion to reopen his application for asylum or withholding of removal, because the
information he filed in support of his motion was available to him at the time of his
merits hearing, and thus, the BIA did not mischaracterize the evidence or
improperly give the affidavits Hossain submitted minimal weight. Furthermore,
the BIA did not hold Hossain to a higher burden of proof for his motion to reopen
by stating that Hossain did not establish that conditions in Bangladesh had
“significantly worsened or otherwise materially changed,” but rather, merely
reiterated the fact that Hossain failed to present new information in support of his
motion to reopen that was not previously available to him at his merits hearing.
Finally, in light of Hossain’s prior adverse credibility determination, which we lack
jurisdiction to review, and the fact that the material that Hossain submitted in
support of his motion to reopen was not new information that was previously
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unavailable, the BIA did not abuse its discretion in finding that he failed to
establish a prima facie case of withholding of removal or CAT relief based on new
and previously unavailable information. Accordingly, we deny the petition.
PETITION DENIED.
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