Musthafa v. Garland

21-6137
Musthafa v. Garland
BIA
Navarro, IJ
A208 097 184
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 Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 16th day of December, two thousand twenty-
5 two.
6
7 PRESENT:
8 RAYMOND J. LOHIER, JR.,
9 WILLIAM J. NARDINI,
10 EUNICE C. LEE,
11 Circuit Judges.
12 _____________________________________
13
14 MOHAMED IRFAN SHAHUL HAMEED
15 MUSTHAFA,
16 Petitioner,
17
18 v. 21-6137
19 NAC
20 MERRICK B. GARLAND, UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Visuvanathan Rudrakumaran,Esq.,
26 Law Office of Visuvanathan
27 Rudrakumaran, New York, NY.
28
1 FOR RESPONDENT: Brian Boynton, Acting Assistant
2 Attorney General; Anna E. Juarez,
3 Senior Litigation Counsel; Evan P.
4 Schultz, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Mohamed Irfan Shahul Hameed Musthafa, a native
13 and citizen of Sri Lanka, seeks review of a February 11, 2021,
14 decision of the BIA affirming a March 9, 2018, decision of an
15 Immigration Judge (“IJ”) denying his application for asylum
16 and withholding of removal. 1 In re Mohamed Irfan Shahul
17 Hameed Musthafa, No. A 208 097 184 (B.I.A. Feb. 11, 2021),
18 aff’g No. A 208 097 184 (Immigr. Ct. N.Y. City Mar. 9, 2018).
19 We assume the parties’ familiarity with the underlying facts
20 and procedural history.
21 We construe the Government’s motion for summary denial
22 as its brief because Musthafa has filed his brief, and we
1 The IJ granted withholding and deferral of removal under the
Convention Against Torture, and the BIA did not disturb that
ruling.
2
1 review the petition on its merits. See United States
2 v. Davis, 598 F.3d 10, 13–14 (2d Cir. 2010) (holding that
3 summary denial is “a rare exception” limited to “truly
4 frivolous” appeals). Musthafa argues that the agency erred
5 in declining to consider asylum and withholding of removal
6 based on religion and imputed political opinion and in
7 declining to remand to permit him to present new evidence of
8 increased tensions between Buddhists and Muslims.
9 I. Asylum and Withholding of Removal
10 An applicant for asylum and withholding of removal has
11 the burden of showing past persecution or a fear of
12 persecution “on account of” a protected ground, “race,
13 religion, nationality, membership in a particular social
14 group, or political opinion.” 8 U.S.C. §§ 1101(a)(42),
15 1158(b)(1)(B)(i), 1231(b)(3)(A).
16 The crux of Musthafa’s arguments on appeal concerns
17 whether the BIA properly deemed his claims for asylum based
18 on religion and imputed political opinion waived. When the
19 BIA has held a claim waived, “this Court’s review is limited
20 to whether the BIA erred in deeming the argument waived.”
21 Prabhudial v. Holder, 780 F.3d 553, 555–56 (2d Cir. 2015).
3
1 “[A]liens—like all other parties to litigation—are bound
2 by the concessions of freely retained counsel.” Hoodho v.
3 Holder, 558 F.3d 184, 192 (2d Cir. 2009). At his hearing
4 before the IJ, Musthafa, through counsel, stated that he had
5 no evidence to support a religious persecution claim, that he
6 was not raising a political opinion claim, and that he wanted
7 to brief claims based on particular social groups.
8 Accordingly, the BIA did not err in concluding that he failed
9 to raise religion and political opinion claims before the IJ.
10 Musthafa’s subsequent assertion in his written closing
11 submission that he merited relief based on imputed political
12 opinion did not relieve him of his prior concession. Id. at
13 192 (noting that only “‘egregious circumstances’ can free an
14 alien from his attorney’s admissions”). On this record, the
15 BIA reasonably determined that Musthafa had abandoned claims
16 based on religion and political opinion. See Prabhudial, 780
17 F.3d at 555 (“[W]e conclude that where the agency properly
18 applies its own waiver rule and refuses to consider the merits
19 of an argument that was not raised before the IJ, we will not
20 permit an end run around those discretionary agency
21 procedures by addressing the argument for the first time in
4
1 a petition for judicial review.”).
2 II. Motion to Remand
3 We review a motion to remand for consideration of new
4 evidence for abuse of discretion. Li Yong Cao v. Dep’t of
5 Justice, 421 F.3d 149, 157 (2d Cir. 2005). The agency has
6 broad discretion to deny a motion to remand grounded in new
7 evidence and may do so, as relevant here, if the movant fails
8 to meet “the heavy burden of demonstrating a likelihood that
9 the new evidence presented would alter the result in the
10 case.” Id. at 156 (quotation marks omitted).
11 Musthafa, who is Muslim, argues that evidence of Buddhist
12 attacks on Muslims that occurred in Sri Lanka after his 2018
13 merits hearing warranted remand because those attacks
14 escalated religious tensions in the country and Musthafa had
15 been harassed on account of his religion in the past. But
16 Musthafa’s new evidence reflected that Buddhist militantism
17 against the Muslim minority began surging in 2009, long before
18 his 2018 merits hearing. On this record, the BIA did not
19 abuse its discretion by concluding that the events in 2019
20 represented a continuation of tensions between Muslims and
21 Buddhists and that remand was not warranted because Musthafa
5
1 could have, but did not, press a claim of religious
2 persecution before the IJ. See Kaur v. BIA, 413 F.3d 232,
3 233 (2d Cir. 2005) (an abuse of discretion may be found when
4 the BIA decision “provides no rational explanation,
5 inexplicably departs from established policies, is devoid of
6 any reasoning, or contains only summary or conclusory
7 statements”).
8 For the foregoing reasons, we construe the Government’s
9 motion for summary denial as its brief and DENY the petition
10 for review. All other pending motions and applications are
11 DENIED and stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
6