Majid v. Holder

11-3307-ag BIA
Majid v. Holder Montante, Jr., IJ
A094 894 724
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 Richard C. Lee United
3 States Courthouse, 141 Church Street, in the City of New
4 Haven, Connecticut, on the 25th day of May, two thousand
5 twelve.
6
7 PRESENT:
8 DENNIS JACOBS,
9 Chief Judge,
10 JON O. NEWMAN,
11 ROBERT D. SACK,
12 Circuit Judges.
13 _______________________________________
14
15 ABDOOL RASHEED MAJID,
16 Petitioner,
17
18 v. 11-3307-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Anne E. Doebler, Buffalo, NY.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney General;
28 Jennifer P. Levings, Senior Litigation
29 Counsel; Carmel A. Morgan, Trial
1 Attorney, Office of Immigration
2 Litigation, United States Department of
3 Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED, that the petition for review
8 is DENIED.
9 Petitioner Abdool Rasheed Majid, a native and citizen
10 of Guyana, seeks review of a July 14, 2011, order of the BIA
11 affirming the June 2, 2009, decision of Immigration Judge
12 (“IJ”) Phillip J. Montante, Jr., denying his application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Abdool Rasheed
15 Majid, No. A094 894 724 (B.I.A. July 14, 2011), aff’g No.
16 No. A094 894 724 (Immig. Ct. Buffalo, NY June 2, 2009). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as supplemented by the BIA. See Yan Chen
21 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well-established. See 8
23 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
24 513 (2d Cir. 2009). Because Majid does not raise any
25 challenge to the agency’s denial of CAT relief, we consider
26 only its denial of asylum and withholding of removal.
2
1 I. Asylum
2 As a preliminary matter, this Court lacks jurisdiction
3 to review the pretermission of his asylum application unless
4 he raises a constitutional claim or question of law. See 8
5 U.S.C. §§ 1158(a)(3); 1252(a)(2)(D). He fails to do so.
6 Majid argues that he did not apply for asylum based on
7 his fear that he would be persecuted as a deportee because
8 he did not believe that he was subject to removal. However,
9 he did not previously assert this basis for excusing his
10 failure to timely file for asylum. Because he bears the
11 burden of establishing changed or extraordinary
12 circumstances, see 8 U.S.C. § 1158(a)(2)(D), and failed to
13 exhaust the issue before the agency, we decline to consider
14 his argument. See Lin Zhong v. U.S. Dep’t of Justice, 480
15 F.3d 104, 119-20 (2d Cir. 2007) (describing the issue
16 exhaustion requirement as mandatory). Furthermore, the IJ
17 did not err by considering solely the period between the
18 date of Majid’s entry to the United States and the date he
19 filed his asylum application in determining whether a
20 material change in circumstances had occurred. See 8 U.S.C.
21 § 1158(a)(2)(D), 8 C.F.R. § 1208.4(a)(4)(i)(A). Because
22 Majid failed to assert a reviewable question regarding the
3
1 IJ’s pretermission of application, we lack jurisdiction to
2 review that decision. See 8 U.S.C. § 1158(a)(2)(B), (3).
3 II. Withholding of Removal
4 Majid argues that he is entitled to a presumption of
5 future harm because he suffered past persecution at the
6 hands of Afro-Guyanese men who, due to his Indian ancestry,
7 burglarized him home, beat his father, and threatened to
8 kill him and his family if he reported the incident. To the
9 contrary, the IJ reasonably found that the unfulfilled
10 threats and harm to his relative alone did not rise to the
11 level of persecution. See Ivanishvili v. U.S. Dep’t of
12 Justice, 433 F.3d 332, 342 (2d Cir. 2006) (holding that harm
13 must be sufficiently severe, rising above mere harassment,
14 to constitute persecution); Gui Ci Pan v. U.S. Attorney
15 Gen., 449 F.3d 408, 412 (2d Cir. 2006) (noting that courts
16 have “rejected [persecution] claims involving ‘unfulfilled’
17 threats’”).
18 The IJ also reasonably found that Majid failed to
19 establish that his ethnicity or any other protected ground
20 was “one central reason” the burglars targeted him. Because
21 the REAL ID Act applies to Majid’s application, he is
22 required to show that his race, religion, nationality,
4
1 political opinion, or particular social group is “one
2 central reason” he is persecuted. See 8 U.S.C.
3 §§ 1101(a)(42), 1158(b)(1)(B)(i); Matter of C-T-L-, 25 I. &
4 N. Dec. 341, 344-46 (BIA 2010) (extending the “one central
5 reason” standard to withholding of removal). However, the
6 documentary evidence he submitted indicated that Indo-
7 Guyanese individuals may have been targeted because of their
8 perceived wealth, and Majid testified that he lived in a
9 middle-class neighborhood and the burglars left once they
10 received the money and jewelry they demanded.
11 Absent the presumption of future harm, an applicant can
12 establish a well-founded fear of persecution by
13 demonstrating either that: (1) he will be targeted
14 individually; or (2) that a group to which he belongs is
15 persecuted and that persecution is “‘so systemic or
16 pervasive as to amount to a pattern or practice of
17 persecution.’” See Mufied v. Mukasey, 508 F.3d 88, 91 (2d
18 Cir. 2007) (quoting In re A-M-, 23 I. & N. Dec. 737, 741
19 (BIA 2005)). Majid argues that he established a well-
20 founded fear of future persecution on account of his
21 ethnicity and, if he is removed, his status as a deportee.
22 However, the 2008 State Department Human Rights Report did
23 not report any societal abuses or discrimination against
5
1 Indo-Guyanese or deportees. Although several reports note
2 incidents in which gangs murdered Indo-Guyanese individuals,
3 those reports do not definitively state that those
4 individuals were targeted due to their ethnicity. Moreover,
5 the report Majid submitted about criminal deportees states
6 that the government conducts surveillance on deportees who
7 are a public safety risk, but does not indicate that gangs
8 target deportees.
9 Furthermore, the BIA did not err in finding that
10 Majid’s fear of future persecution was undermined by the
11 IJ’s finding that Majid’s mother remained in Guyana without
12 incident after the burglary until her death apparently of
13 natural causes (see JA 193) in 2008. See Melgar de Torres
14 v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding that
15 claim of well-founded fear was diminished when asylum
16 applicant’s mother and daughters continued to live in
17 applicant’s native country).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
6
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
7