Chowdhury v. Holder

08-2615-ag
Chowdhury v. Holder
BIA
Defonzo, IJ
A96 426 151
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 16 th day of February, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROSEMARY S. POOLER,
10 REENA RAGGI,
11 Circuit Judges.
12 _____________________________________
13
14 FARHADUL MANNAN CHOWDHURY,
15 Petitioner,
16
17 v. 08-2615-ag
18 NAC
19 ERIC H. HOLDER JR., *
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
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25
*
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 PETITIONER: Salim Sheikh, New York, New York.
2
3 FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney
4 General; Christopher C. Fuller,
5 Senior Litigation Counsel; Zoe J.
6 Heller, Trial Attorney, Office of
7 Immigration Litigation, Civil
8 Division, U.S. Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 decision of the Board of Immigration Appeals (“BIA”), it is
13 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
14 review is DISMISSED in part and DENIED in part.
15 Farhadul Mannan Chowdhury, a native and citizen of
16 Bangladesh, seeks review of a May 6, 2008 order of the BIA
17 affirming the October 19, 2005 decision of Immigration Judge
18 (“IJ”) Paul A. Defonzo, denying his application for asylum,
19 withholding of removal, and relief under the Convention
20 Against Torture (“CAT”). In re Farhadul Mannan Chowdhury,
21 No. A96 426 151 (B.I.A. May 6, 2008), aff’g No. A96 426 151
22 (Immig. Ct. N.Y. City Oct. 19, 2005). We assume the
23 parties’ familiarity with the underlying facts and
24 procedural history of this case.
25 When the BIA affirms and supplements the IJ’s decision
26 but does not adopt the IJ’s adverse credibility
27 determination, we review the IJ’s decision as modified by
2
1 the BIA decision. Xue Hong Yang v. U.S. Dep’t of Justice,
2 426 F.3d 520, 522 (2d Cir. 2005). Here, because the BIA did
3 not adopt the IJ’s adverse credibility finding, but
4 explicitly stated that it was reviewing the claim on the
5 assumption that petitioner’s testimony was credible, we
6 assume the credibility of that testimony. See Yan Chen v.
7 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
8 We review the agency’s factual findings under the
9 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
10 see also Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d
11 281, 289 (2d Cir. 2007). We review de novo questions of law
12 and the application of law to undisputed fact. Salimatou
13 Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
14 I. Asylum
15 As an initial matter, we do not have jurisdiction to
16 review the IJ’s determination that Chowdhury failed to
17 establish “extraordinary circumstances” excusing his failure
18 to file his asylum application within the one-year deadline.
19 8 U.S.C. § 1158(a)(3); see also 8 C.F.R. § 208.4(a)(5)
20 (“extraordinary circumstances” refers to “events or factors
21 directly related to the failure to meet the 1-year
22 deadline). Chowdhury argues that the IJ failed to consider
3
1 his argument that he did not apply for asylum because he
2 thought he could gain residency through employment.
3 However, this argument amounts to nothing more than a
4 challenge to the IJ’s fact-finding with respect to the one-
5 year bar, which this Court does not have jurisdiction to
6 review. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji
7 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330-32 (2d Cir.
8 2006). Accordingly, to the extent Chowdhury challenges the
9 pretermission of his untimely asylum application, we dismiss
10 the petition for review.
11 II. Withholding of Removal
12 We also find that the BIA properly denied Chowdhury’s
13 application for withholding of removal, which is not subject
14 to the one-year bar. With regard to Chowdhury’s testimony
15 that he was threatened, harassed, verbally abused, and
16 manhandled by his former girlfriend’s uncle, a major in the
17 Bangladeshi army, the BIA properly found that he failed to
18 provide sufficient evidence that he suffered this abuse on
19 account of a protected ground. See 8 U.S.C. § 1101(a)(42).
20 By Chowdhury’s own admission, the main goal of his
21 girlfriend’s uncle was to break up their relationship.
22 While Chowdhury believed that the reason was his “religious
4
1 independence,” this is insufficient to bring the uncle’s
2 harassment within the ambit of refugee protection. Cf.
3 Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir. 2006) (“The
4 critical showing that an applicant must make . . . is that
5 he has suffered past persecution, or fears future
6 persecution, on the basis of religion.”). Accordingly, the
7 BIA’s nexus finding was supported by substantial evidence.
8 See 8 U.S.C. § 1252(b)(4)(B); see also Manzur, 494 F.3d at
9 289. This finding is dispositive of Chowdhury’s claimed
10 fear of future persecution by his former girlfriend’s uncle.
11 In 1982, while Chowdhury was in college and a member of
12 the Bangladesh National Party (BNP), he was physically
13 removed from a rickshaw by student members of a rival
14 political party, held at their “compound” for at least a
15 day, and beaten. The BIA found without further explanation
16 that “this incident alone does not rise to the level of
17 persecution.” It is well established that beatings and
18 torture can constitute persecution, particularly when they
19 occur in the context of a detention. See, e.g., Beskovic v.
20 Gonzales, 467 F.3d 223, 226 (2d Cir. 2006); Yan Chen, 417
21 F.3d at 272, 275. The BIA did not explain why the beatings
22 of Chowdhury occurring in the context of a detention by
5
1 members of the rival party did not constitute past
2 persecution. See Beskovic, 467 F.3d at 227 (“Whether or not
3 [petitioner] is entitled to a presumption of future
4 persecution requires a determination, based on the correct
5 legal standard, of whether he suffered past persecution.
6 Because we cannot determine whether the IJ correctly
7 assessed [petitioner’s] claim of past persecution, we are
8 stymied.”).
9 However, even if the BIA’s explanation was insufficient,
10 there is no evidence in the record that the government
11 failed to prevent the actions of the student members of the
12 rival political party. See Pavlova v. INS, 441 F.3d 82, 91
13 (2d Cir. 2006) (“[W]e have never held that direct
14 governmental action is required to make out a claim of
15 persecution. On the contrary, it is well established that
16 private acts may be persecution if the government has proved
17 unwilling to control such action.”) (internal quotation
18 marks omitted). Because Chowdhury has not presented
19 evidence that the government was “unwilling to control such
20 actions,” id., he cannot establish persecution based on this
21 record. Remand is therefore futile. See Cao He Lin v. U.S.
22 Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005).
6
1 III. CAT Relief
2 Finally, we find that the BIA’s denial of CAT relief is
3 supported by substantial evidence. Chowdhury bases his CAT
4 claim on the same evidence of his withholding of removal
5 claim, and he fails to indicate anything in the record that
6 would a compel a conclusion contrary that he would more
7 likely than not be tortured. See 8 U.S.C. § 1252(b)(4)(B);
8 see also Manzur, 494 F.3d at 289.
9 For the foregoing reasons, the petition for review is
10 DISMISSED in part and DENIED in part. Any pending motion
11 for a stay of removal in this petition is DISMISSED as moot.
12
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
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