Ahmed v. Holder

10-1172-ag
Ahmed v. Holder
BIA
A096 442 859
A096 442 858
A096 442 857
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 31st day of May, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 SYED IQBAL AHMED, JAVAIRIA AHMED,
14 ROMANA AHMED,
15 Petitioners,
16
17 v. 10-1172-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONERS: Matthew L. Kolken, Kolken & Kolken,
25 Buffalo, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Anthony C. Payne, Senior
1 Litigation Counsel; Margaret Kuehne
2 Taylor, Trial Attorney, Civil
3 Division, Office of Immigration
4 Litigation, United States Department
5 of Justice, Washington D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioners Syed Iqbal Ahmed, Javairia Ahmed, and
12 Romana Ahmed, natives and citizens of Pakistan, seek review
13 of the February 26, 2010, order of the BIA denying
14 cancellation of removal and Petitioners’ motion to remand in
15 order to apply for asylum, withholding of removal, and
16 relief under the Convention Against Torture. In re Syed
17 Iqbal Ahmed, Javairia Ahmed, Romana Ahmed, No. A096 442
18 859/858/857 (B.I.A. Feb. 26, 2010). We assume the parties’
19 familiarity with the underlying facts and procedural history
20 in this case.
21 Under the circumstances of this case, we have reviewed
22 the BIA’s decision issued following remand. See Belortaja
23 v. Gonzales, 484 F.3d 619, 622-23 (2d Cir. 2007). As an
24 initial matter, we decline to review the Ahmeds’ challenge
25 to the agency’s finding that they did not demonstrate the
2
1 requisite good moral character to establish their
2 eligibility for cancellation of removal, as the issue was
3 ripe for review at the time of their initial petition for
4 review before a previous panel of this Court, and that panel
5 determined that they had waived the issue. See Johnson v.
6 Holder, 564 F.3d 95, 99-100 (2d Cir. 2009) (holding that
7 “where an issue was ripe for review at the time of an
8 initial appeal but was nonetheless foregone, it is
9 considered waived and the law of the case doctrine bars ...
10 an appellate court in a subsequent appeal from reopening
11 such issues” in the absence of cogent or compelling
12 reasons).
13 Accordingly, the only issue before us is the Ahmeds’
14 challenge to the BIA’s denial of their motion to remand,
15 which we review for abuse of discretion. Li Yong Cao v.
16 Dep’t of Justice, 421 F.3d 149, 151, 156 (2d Cir. 2005).
17 The BIA did not abuse its discretion in denying the Ahmeds’
18 motion based on their failure to provide sufficient evidence
19 establishing their prima facie eligibility for relief. See
20 Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008);
21 INS v. Abudu, 485 U.S. 94, 104-05 (1988) (holding that a
22 movant’s failure to establish a prima facie case for the
3
1 underlying substantive relief is a proper ground for the BIA
2 to deny a motion to reopen). While the Ahmeds argued that
3 they feared harm in Pakistan because the Taliban was
4 targeting and killing both Shia Muslims and female students,
5 the BIA reasonably found that the Ahmeds failed to
6 demonstrate an individualized risk of persecution or a
7 pattern or practice of persecution against similarly
8 situated individuals, as the Ahmeds did not present any
9 evidence that the problems they cited were occurring in
10 their home city of Karachi, other major cities in Pakistan,
11 or many other parts of the country. See Jian Hui Shao, 546
12 F.3d at 168 (noting that in order to establish prima facie
13 eligibility for relief in a motion to reopen, petitioner
14 must “show a ‘realistic chance’” of obtaining relief by
15 “demonstrating that the proffered new evidence would likely
16 alter the result . . .”); Santoso v. Holder, 580 F.3d 110,
17 112 (2d Cir. 2009) (finding no error in agency’s pattern and
18 practice finding when its determination was supported by
19 country conditions evidence in the record).
20 Although the Ahmeds claim that the BIA impermissibly
21 made findings of fact, this Court has recognized that the
22 BIA will engage in fact-finding when considering relevant
23 evidence of country conditions in evaluating a motion to
4
1 reopen. See Jian Hui Shao, 546 F.3d at 168; see also Li
2 Yong Cao, 421 F.3d at 156. In addition, although the Ahmeds
3 claim that the BIA failed to meaningfully consider all of
4 their evidence, a review of the record reveals that the BIA
5 considered the Ahmeds’ evidence, as it explicitly listed the
6 content of the articles submitted. See Xiao Ji Chen v. U.S.
7 Dep’t of Justice, 471 F.3d 315, 338 (2d Cir. 2006) (holding
8 that the Court will “presume that an IJ has taken into
9 account all of the evidence before him, unless the record
10 compellingly suggests otherwise.”).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any pending motion
13 for a stay of removal in this petition is DISMISSED as moot.
14 Any pending request for oral argument in this petition is
15 DENIED in accordance with Federal Rule of Appellate
16 Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
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