Ashif v. Barr

18-3760
Ashif v. Barr
BIA
Poczter, IJ
A205 014 432
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 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 20th day of October, two thousand twenty.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 RICHARD J. SULLIVAN,
11 Circuit Judges.
12 _____________________________________
13
14 KHONDOKER ZUBAIR ASHIF,
15 Petitioner,
16
17 v. 18-3760
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Thomas V. Massucci, New York, NY.
25
26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
27 Attorney General; Paul Fiorino,
28 Senior Litigation Counsel,
29 Katherine A. Smith, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32
1 Department of Justice, Washington,
2 DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Khondoker Zubair Ashif, a native and citizen
9 of Bangladesh, seeks review of a November 28, 2018, decision
10 of the BIA affirming an October 27, 2017, decision of an
11 Immigration Judge (“IJ”) denying his application for asylum,
12 withholding of removal, and relief under the Convention
13 Against Torture (“CAT”). In re Khondoker Zubair Ashif, No.
14 A205 014 432 (B.I.A. Nov. 28, 2018), aff’g No. A205 014 432
15 (Immig. Ct. N.Y. City Oct. 27, 2017). We assume the parties’
16 familiarity with the underlying facts and procedural history.
17 In lieu of filing a brief, the government moves for
18 summary denial and to stay briefing. Rather than determine
19 if the petition is frivolous as required for summary denial,
20 Pillay v. INS, 45 F.3d 14, 16–17 (2d Cir. 1995), we construe
21 the government’s motion as an opposition brief and deny the
22 petition on the merits.
2
1 Ashif did not allege past persecution, and thus had the
2 burden to establish eligibility for asylum by demonstrating
3 a well-founded fear of future persecution. See 8 C.F.R.
4 § 1208.13(b)(2); Ramsameachire v. Ashcroft, 357 F.3d 169, 178
5 (2d Cir. 2004). This showing “requires that the alien
6 present credible testimony that he subjectively fears
7 persecution and establish that his fear is objectively
8 reasonable.” Ramsameachire, 357 F.3d at 178. A fear is
9 objectively reasonable “even if there is only a slight, though
10 discernible, chance of persecution.” Diallo v. INS, 232 F.3d
11 279, 284 (2d Cir. 2000). On the other hand, a fear is not
12 objectively reasonable if it lacks “solid support” in the
13 record and is merely “speculative at best.” Jian Xing Huang
14 v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005).
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and BIA’s decisions “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
18 524, 528 (2d Cir. 2006). We review factual findings for
19 substantial evidence and questions of law de novo.
20 See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 Having done so, we find no error in the agency’s determination
3
1 that Ashif failed to demonstrate an objectively reasonable
2 fear of future persecution.
3 Ashif asserts that following his arrival in the United
4 States he was falsely chargedwith murder in Bangladesh, and
5 that if he returns, the Bangladeshi authorities will arrest
6 and torture him. But while Ashif presented evidence showing
7 that he is in fact being prosecuted in a criminal case in
8 Bangladesh, his evidence also suggests that he is receiving
9 adequate protections, in that a warrant was issued, he has an
10 attorney, and three of his co-defendants there were arrested
11 but released on bail. Moreover, although the country
12 conditions reports cited by Ashif reflect a politicized and
13 sometimes corrupt judiciary, as well as court backlogs,
14 arbitrary and warrantless arrests by security forces, and
15 unjustified detentions of opposition leaders, Ashif has
16 presented no evidence to suggest that he himself would be
17 subject to such measures, particularly since he was not an
18 opposition leader. Accordingly, his fear based on these
19 general country conditions is speculative at best. See Jian
20 Xing Huang, 421 F.3d at 129.
21
4
1 Significantly, Ashif did not allege that his brother or
2 any of his other codefendants have suffered any physical harm
3 while awaiting trial in Bangladesh. See Melgar de Torres v.
4 Reno, 191 F.3d 307, 313 (2d Cir. 1997) (holding that lack of
5 harm to similarly-situated family members undermines
6 objective reasonableness of applicant’s fear). And Ashif’s
7 demonstrated lack of knowledge about the details of his case,
8 and lack of action beyond hiring an attorney, further supports
9 the conclusion that he lacks a reasonable fear of persecution
10 in connection with his pending criminal charges.
11 Since Ashif’s failure to demonstrate an objectively
12 reasonable fear of persecution is dispositive of his requests
13 for asylum, withholding of removal, and CAT relief, see
14 Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010), the
15 petition for review is DENIED. All pending motions and
16 applications are DENIED and stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe,
19 Clerk of Court
5