Dada v. Holder

05-6291-ag (L); 08-5158-ag (Con)
Dada v. Holder
BIA
Hom, IJ
A095 980 071
A095 961 832
A095 961 841
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21 st day of January, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROGER J. MINER,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _______________________________________
13 FAZAL MAHMOOD DADA, MOHAMMAD IBRAHIM
14 DADA, AZEEM FAZAL DADA,
15 Petitioners,
16 v. 05-6291-ag (L);
17 08-5158-ag (Con)
18 NAC
19 ERIC H. HOLDER, JR., 1 UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric. H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONERS: Shahla Khan, New York, New York.
2
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General Civil Division; Michael P.
5 Lindemann, Assistant Director; Lyle
6 D. Jentzer, Attorney, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of these consolidated petitions
12 for review of two Board of Immigration Appeals (“BIA”)
13 decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that
14 the petitions for review are DENIED.
15 Fazal Mahmood Dada, a native and citizen of Pakistan,
16 seeks review of an October 27, 2005, order of the BIA
17 affirming the August 3, 2004, decision of Immigration Judge
18 (“IJ”) Sandy Hom, which denied his application for asylum,
19 withholding of removal, and relief under the Convention
20 Against Torture (“CAT”). 2 In re Fazal Mahmood Dada, et al.,
21 Nos. A095 980 071/A095 961 832/A095 961 841 (B.I.A. Oct. 27,
22 2005), aff’g Nos. A095 980 071/A095 961 832/A095 961 841
23 (Immig. Ct. N.Y. City Aug. 3, 2004). Dada also seeks review
Fazal Mahmood Dada was the lead petitioner before
2
the agency. Accordingly, we refer exclusively to him
throughout. Dada’s oldest son, Muhammad Dada, filed an
independent asylum application, which, because it relies
entirely on the allegations in his father’s application,
was consolidated with Dada’s case. Dada’s minor son,
Azeem Dada, applied for asylum as a derivative
beneficiary of his father.
2
1 of the BIA’s September 24, 2008, order denying his motion to
2 reopen his removal proceedings. See In re Fazal Mahmood
3 Dada, et al., Nos. A095 980 071/A095 961 832/A095 961 841
4 (B.I.A. Sept. 24, 2005). We assume the parties’ familiarity
5 with the underlying facts and procedural history in this
6 case.
7 I. Motion to Add Sons to Caption
8 Federal Rule of Appellate Procedure 15 requires that
9 the petition “must name” each party seeking review either in
10 the caption or body of the petition. Dada put only his own
11 name on the petition for review, but added the phrase “et
12 all” by hand. Terms such as “et al.” are ordinarily
13 insufficient. See Fed. R. App. P. 15. However, by using
14 the phrase “et all,” and also attaching the BIA’s decision,
15 which lists all three names and alien numbers, the petition
16 effectively complied with the rule because his actions were
17 “the functional equivalent of what the rule requires.” See
18 Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988)
19 (addressing Fed. R. App. P. 3, and finding that, “if a
20 litigant files papers in a fashion that is technically at
21 variance with the letter of a procedural rule, a court may
22 nonetheless find that the litigant has complied with the
3
1 rule if the litigant’s actions were the functional
2 equivalent of what the rule requires”); see also Kowaleski
3 v. United States Dep’t of Labor, 879 F.2d 1173 (3d Cir.
4 1989) (applying the Supreme Court’s reasoning in Torres to
5 petitions for review filed under Rule 15).
6 II. Petition for Review of Agency’s Denial of Dada’s
7 Applications for Relief
8
9 We nonetheless deny Dada’s petition for review
10 challenging the BIA’s affirmance of the IJ’s denial of his
11 applications for asylum, withholding of removal, and CAT
12 relief. We review both the IJ’s and the BIA’s decisions.
13 See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.
14 2005). The applicable standards of review are well-
15 established. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen
16 Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007); Salimatou Bah
17 v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
18 We lack jurisdiction to consider Dada’s challenge to
19 the agency’s pretermission of his untimely asylum
20 application. See 8 U.S.C. § 1158(a)(3) (explaining that no
21 court shall have jurisdiction to review any determination of
22 the Attorney General regarding the timeliness of an asylum
23 application under section 1158(a)(2)(B)). Although we
24 retain jurisdiction to review constitutional claims and
4
1 questions of law, 8 U.S.C. § 1252(a)(2)(D), Dada raises no
2 such argument, essentially disputing the IJ’s determination
3 that his delay in filing after the end of his lawful status
4 was not reasonable.
5 With respect to Dada’s applications for withholding of
6 removal and CAT relief, we conclude that the IJ’s adverse
7 credibility determination is supported by substantial
8 evidence. In finding Dada not credible, the IJ reasonably
9 relied upon inconsistencies surrounding Dada’s alleged
10 arrest by Pakistani authorities. See Diallo v. INS, 232
11 F.3d 279, 288 (2d Cir. 2000). In light of those
12 discrepancies, the IJ reasonably determined that Dada’s
13 failure to provide corroborating evidence further undermined
14 his credibility. See Biao Yang v. Gonzales, 496 F.3d 268,
15 273 (2d Cir. 2007). Because the agency’s adverse credibility
16 determination was supported by substantial evidence, the
17 agency reasonably found that Dada was unable to meet his
18 burden of proof for withholding of removal and CAT relief.
19 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue
20 Hong Yang v. U.S. Dep’t. of Justice, 426 F.3d 520, 523 (2d
21 Cir. 2005).
22
23 Furthermore, there was no abuse of discretion in the
5
1 agency’s denial of Dada’s request for a continuance. See
2 Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006).
3 Dada’s case had been pending for over a year; Dada had ample
4 time to prepare and obtain documents; his new counsel was on
5 notice that the case was scheduled for a full merits
6 hearing, an interpreter had already been arranged; and the
7 IJ had continued the matter several times in the past. See
8 Morgan v. Gonzales, 445 F.3d 549, 551-52 (2d Cir. 2006)
9 (giving the agency wide latitude in declining to continue
10 cases and finding that they abuse their discretion only when
11 a denial is based on a legal or factual error or is
12 otherwise outside the “range of permissible decisions”).
13 III. Petition for Review of BIA’s Denial of Motion to Reopen
14
15 We likewise deny Dada’s petition for review of the
16 BIA’s denial of his motion to reopen, finding no abuse of
17 discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
18 2005) (per curiam); Jin Ming Liu v. Gonzales, 439 F.3d 109,
19 111 (2d Cir. 2006). The BIA properly considered the
20 evidence Dada offered in support of his claim that country
21 conditions in Pakistan had changed, and reasonably found
22 that this evidence either failed to show a material change
23 in country conditions or was previously available. See
24 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii); INS v. Abudu, 485 U.S.
6
1 94, 104-05 (1988).
2 Dada argues that the BIA violated his due process
3 rights by taking administrative notice of a change in
4 country conditions without giving Dada an opportunity to
5 respond. However, there was no violation because that was
6 not the sole basis for the BIA’s rejection of his motion.
7 See Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196, 198-99
8 (2d Cir. 2007); Shao v. Mukasey, 546 F.3d 138, 167-68 (2d
9 Cir. 2008). There was no abuse of discretion in the BIA’s
10 denial of Dada’s motion to reopen.
11 For the foregoing reasons, the petitions for review are
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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