Uddin-Nessa v. Barr

19-1105
Uddin-Nessa v. Barr
BIA
A200 239 856
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
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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 TO 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 15th day of September, two thousand twenty.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DENNY CHIN,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 AHMED SHAFIQ UDDIN-NESSA, AKA
14 MOHAMED SHAFIQ AHMED,
15 Petitioner,
16
17 v. 19-1105
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gregory Marotta, Vernon, NJ.
25
26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
27 Attorney General; Anthony P.
28 Nicastro, Assistant Director;
29 Sheri R. Glaser, Trial Attorney,
1 Office of Immigration Litigation,
2 United States Department of
3 Justice, Washington, DC.
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 in part and DISMISSED in part.
9 Petitioner Ahmed Shafiq Uddin-Nessa, a native and citizen
10 of Bangladesh, seeks review of a March 28, 2019 decision of
11 the BIA, denying his motion to reopen. In re Ahmed Shafiq
12 Uddin-Nessa, No. A200 239 856 (B.I.A. Mar. 28, 2019). We
13 assume the parties’ familiarity with the underlying facts and
14 procedural history.
15 The applicable standards of review are well established.
16 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
17 2008). In his motion to reopen, Uddin-Nessa argued that
18 conditions in Bangladesh had worsened for members of the
19 Bangladesh Nationalist Party (“BNP”) and that police in
20 Bangladesh sought to arrest him in 2017 on account of his
21 activities with that party before he came to the United States
22 in 2011. As support, he submitted an affidavit from his
23 sister, a warrant for his arrest obtained by his sister, and
2
1 general country conditions evidence.
2 It is undisputed that Uddin-Nessa’s 2018 motion was
3 untimely because it was filed two years after his removal
4 order became final in 2016. See 8 U.S.C.
5 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the
6 time limitation for filing a motion to reopen does not apply
7 if reopening is sought to apply for asylum and the motion “is
8 based on changed country conditions arising in the country of
9 nationality or the country to which removal has been ordered,
10 if such evidence is material and was not available and would
11 not have been discovered or presented at the previous
12 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
13 § 1003.2(c)(3). The BIA did not err in finding that Uddin-
14 Nessa failed to demonstrate such conditions.
15 “[T]o prevail on a motion to reopen alleging changed
16 country conditions where the persecution claim was previously
17 denied based on an adverse credibility finding . . . , the
18 [movant] must either overcome the prior determination or show
19 that the new claim is independent of the evidence that was
20 found to be not credible.” Matter of F-S-N-, 28 I. & N. Dec.
21 1, 3 (B.I.A. 2020); see also Kaur v. BIA, 413 F.3d 232, 234
3
1 (2d Cir. 2005) (“[E]vidence submitted by petitioner in
2 support of . . . motion was not ‘material’ because it did not
3 rebut the adverse credibility finding that provided the basis
4 for the IJ’s denial of petitioner’s underlying asylum
5 application.”). The BIA did not err in concluding that
6 Uddin-Nessa’s evidence—an attempt to arrest him in Bangladesh
7 in 2017 and general conditions in that country—failed to
8 overcome the agency’s underlying adverse credibility
9 determination. That evidence did not address the findings
10 that formed the basis for the BIA’s determination: Uddin-
11 Nessa’s inconsistent statements to immigration authorities
12 regarding whether he had ever been arrested. See Kaur, 413
13 F.3d at 234; Matter of F-S-N-, 28 I. & N. Dec. at 3. That
14 finding alone was dispositive of Uddin-Nessa’s motion to
15 reopen insofar as he sought to apply for asylum based on
16 changed country conditions, and we deny the petition to this
17 extent. See Kaur, 413 F.3d at 234; Matter of F-S-N-, 28 I.
18 & N. Dec. at 3.
19 Nevertheless, we note that the BIA did not err in its
20 alternative determination that Uddin-Nessa failed to
21 establish a material change in conditions because his
4
1 personalized evidence was not sufficiently reliable and his
2 country conditions evidence described ongoing, rather than
3 worsened, political violence in Bangladesh. See Xiao Ji Chen
4 v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
5 (providing that the weight afforded evidence in immigration
6 proceedings lies largely within agency discretion); Qin Wen
7 Zheng v. Gonzales, 500 F.3d 143, 146–49 (2d Cir. 2007)
8 (holding that the agency may decline to credit evidence
9 submitted with a motion to reopen by an alien who was found
10 not credible in the underlying proceeding); see also In re S-
11 Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (comparing
12 country conditions evidence submitted with motion to
13 conditions at the time of the hearing below).
14 Because Uddin-Nessa did not demonstrate that the time
15 limitations applicable to his motion should be excused, “his
16 motion to reopen could only be considered upon exercise of
17 the Agency’s sua sponte authority.” Mahmood v. Holder, 570
18 F.3d 466, 469 (2d Cir. 2009) (citing 8 C.F.R. § 1003.2(a)).
19 We lack jurisdiction to review the agency’s “entirely
20 discretionary” decision declining to reopen proceedings sua
21 sponte. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
5
1 However, “where the Agency may have declined to exercise its
2 sua sponte authority because it misperceived the legal
3 background and thought, incorrectly, that a reopening would
4 necessarily fail, remand to the Agency for reconsideration in
5 view of the correct law is appropriate.” Mahmood, 570 F.3d
6 at 469.
7 The BIA did not misperceive the law in declining to
8 reopen sua sponte based on Uddin-Nessa’s argument that his
9 notice to appear was defective under Pereira v. Sessions, 138
10 S. Ct. 2105 (2018). His argument that his notice to appear
11 was insufficient to initiate removal proceedings because it
12 did not specify a hearing date is foreclosed by Banegas Gomez
13 v. Barr, 922 F.3d 101, 110, 112 (2d Cir. 2019). Accordingly,
14 we dismiss the petition for review insofar as it challenges
15 the BIA’s discretionary decision declining to reopen sua
16 sponte. See Ali, 448 F.3d at 518.
17 For the foregoing reasons, the petition for review is
18 DENIED in part and DISMISSED in part. All pending motions
19 and applications are DENIED and stays VACATED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe,
22 Clerk of Court
6