Javed v. Holder

11-292-ag
Javed v. Holder
BIA
Abrams, IJ
A047 270 355
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 4th day of April, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
______________________________________
AMIR JAVED,
Petitioner,
11-292-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New
York, New York
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ada E. Bosque, Senior
Litigation Counsel; Daniel E.
Goldman, Senior Litigation Counsel,
Office of Immigration Litigation,
Civil Division, United States
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DISMISSED in part and DENIED in part.
Petitioner Amir Javed, a native and citizen of
Pakistan, seeks review of a January 13, 2011 decision of the
BIA affirming the August 5, 2010 decision of Immigration
Judge (“IJ”) Steven R. Abrams denying Javed’s application
for withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Amir Javed, No. A047 270 355
(B.I.A. Jan. 13, 2011), aff’g No. A047 270 355 (Immig. Ct.
N.Y. City Aug. 5, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history of the
case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
2
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009).
Because Javed is removable by reason of having
committed a criminal offense covered by 8 U.S.C.
§ 1182(a)(2), we lack jurisdiction to review the agency’s
factual findings and discretionary determinations. See
8 U.S.C. § 1252(a)(2)(C). Our jurisdiction is limited to
constitutional claims and questions of law. See 8 U.S.C.
§ 1252(a)(2)(D).
Javed argues that the agency failed to consider his
evidence confirming his membership in the Pakistan Muslim
League Q (“PML Q”) and that prisoners in Pakistan are
routinely subjected to torture. However, while we have
suggested that the agency’s failure to consider evidence may
constitute an error of law, see Mendez v. Holder, 566 F.3d
316, 323 (2d Cir. 2009) (per curiam), the record does not
compel the conclusion that the agency ignored any evidence.
See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337
n.17 (2d Cir. 2006). We do not have jurisdiction to
consider Javed’s other challenges to the agency’s conclusion
that he did not establish a likelihood of persecution or
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torture as those arguments essentially “quarrel[] over the
correctness of the [agency’s] factual findings.” Id. at
329.1
We have jurisdiction to consider Javed’s argument that
the IJ deprived him of due process by denying his request
for a continuance so that his mother could testify as it
presents a colorable constitutional claim. However, Javed
did not establish that he was “denied a full and fair
opportunity to present [his] claims,” Burger v. Gonzales,
498 F.3d 131, 134 (2d Cir. 2007), as he was given an
opportunity to present his mother as a witness and did not
demonstrate that the IJ’s denial of the continuance he
requested was outside of the IJ’s “wide latitude in calendar
management,” Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.
2006).
1
We note Javed’s argument that the agency erred as a
matter of law in concluding that westernized Pakistanis
are not a protected social group. However, we do not
address it because the agency made an alternative,
dispositive finding that even if they were a protected
social group, Javed did not establish a likelihood that
he would be persecuted as a member of that group. We
lack jurisdiction to consider any challenge to that
factual determination.
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For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate
Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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