Islam v. Holder

11-1006-ag
Islam v. Holder
BIA
A096 423 837
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 27th day of September, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 MOHAMMED TAJUL ISLAM, AKA TAJUL ISLAM,
14 AKA MOHAMMED TAZUL ISLAM,
15 Petitioner,
16
17 v. 11-1006-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Usman B. Ahmad, Long Island City,
25 New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Douglas E. Ginsburg,
29 Assistant Director; Paul Fiorino,
30 Senior Litigation Counsel, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Mohammed Tajul Islam, a native and citizen of
6 Bangladesh, seeks review of the February 15, 2011, order of
7 the BIA denying his motion to reopen. In re Mohammed Tajul
8 Islam, No. A096 423 837 (B.I.A. Feb. 15, 2011). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). The BIA did not abuse its discretion in
14 denying the motion as it was untimely and number-barred and
15 because Islam neither established changed conditions related
16 to a protected ground nor established his prima facie
17 eligibility for relief under the Convention Against Torture
18 (“CAT”). There is no dispute that Islam’s third motion to
19 reopen, filed in June 2010, was numerically barred and
20 untimely, because an Immigration Judge issued a final order
21 of removal in June 2005. 8 U.S.C. § 1229a(c)(7)(A), (C);
22 8 C.F.R. § 1003.2(c)(2). Accordingly, Islam was required to
23 show changed circumstances arising in Bangladesh, and that
2
1 the evidence of the changed circumstances was “material and
2 was not available and could not have been discovered or
3 presented at the previous hearing.” 8 C.F.R.
4 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
5 As an initial matter, Islam’s argument that he is a
6 member of a social group consisting of persons who have
7 “offended or shamed a police officer and therefore [are]
8 vulnerable to violent attack that will go unpunished by the
9 government” is unexhausted and not subject to review,
10 because he never presented that argument to the BIA. See
11 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-22 (2d
12 Cir. 2007).
13 Even if Islam had raised the social group argument
14 before the BIA, the BIA’s finding that Islam alleged mere
15 “criminal matters” that do not satisfy any established
16 ground for asylum or withholding of removal is supported by
17 substantial evidence, as Islam alleged that he was being
18 targeted by his father-in-law because he left his wife in
19 Bangladesh. Because the alleged change in conditions did
20 not relate to a protected ground, Islam failed to
21 demonstrate a change in conditions material to asylum or
22 withholding of removal. See Jian Hui Shao v. Mukasey, 546
3
1 F.3d 138, 169 (2d Cir. 2008); see also 8 U.S.C.
2 § 1252(b)(4)(B) (Under the substantial evidence standard,
3 the BIA’s factual findings are “conclusive unless any
4 reasonable adjudicator would be compelled to conclude to the
5 contrary.”).
6 Moreover, the BIA reasonably determined that Islam did
7 not present sufficient evidence to establish a prima facie
8 case for relief under the Convention Against Torture
9 (“CAT”). See Jian Hui Shao, 546 F.3d at 169. To establish
10 eligibility for CAT relief, an alien must show that it is
11 more likely than not that he would be tortured by or with
12 the acquiescence of the authorities. See 8 U.S.C.
13 §§ 1208.16(c)(2), 1208.17. Here, the BIA reasonably found
14 that the evidence that Islam provided did not sufficiently
15 establish that he would be unable to obtain the protection
16 of Bangladeshi authorities against any threat posed by his
17 father-in-law, as the only evidence to support his claim
18 that his father-in-law would be allowed to act with impunity
19 was his own speculation. See Jian Xing Huang v. INS, 421
20 F.3d 125, 129 (2d Cir. 2005). Since Islam failed to
21 establish changed country conditions relevant to a protected
22 ground or a prima facie case for asylum, withholding of
4
1 removal, or protection under the CAT, the BIA properly
2 denied his motion to reopen. See 8 U.S.C.
3 § 1229a(c)(7)(C)(ii); INS v. Abudu, 485 U.S. 94, 104-05
4 (1988)(a movant’s failure to establish a prima facie case
5 for the underlying substantive relief sought is a proper
6 ground for the denial of a motion to reopen).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2), and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
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