09-2101-ag
Ullah v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 2 nd day of July, two thousand and ten.
5
6 PRESENT: ROGER J. MINER,
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12 MOHAMMED JAFAR ULLAH, MAMTAJ BEGUM,
13 JAHED MOHAMMED JAFARULLAH, FAHAD
14 MOHAMMED JAFARULLAH, and SHAHEEN AHKTER,
15
16 Petitioners,
17
18 -v.- 09-2101-ag
19
20 ERIC HOLDER, JR., United States Attorney
21 General, and DEPARTMENT OF HOMELAND
22 SECURITY,
23
24 Respondents. *
25
26
*
The Clerk of the Court is respectfully directed to amend the
official caption of this action to conform to the caption listed above.
1 FOR PETITIONERS: AMY N. GELL, Gell & Gell, New York,
2 NY.
3
4 FOR RESPONDENTS: ANDREW B. INSEGNA, Trial Attorney,
5 Office of Immigration Litigation
6 (Tony West, Assistant Attorney
7 General; Daniel E. Goldman, Senior
8 Litigation Counsel, Office of
9 Immigration Litigation, on the
10 brief), Civil Division, U.S.
11 Department of Justice, Washington,
12 DC.
13
14 UPON DUE CONSIDERATION of this petition for review of a
15 Board of Immigration Appeals (“BIA”) decision, IT IS HEREBY
16 ORDERED, ADJUDGED, AND DECREED that the petition for review
17 is DENIED.
18 Petitioners Mohammed Jafar Ullah, Mamtaj Begum, Jahed
19 Mohammed Jafarullah, Fahad Mohammed Jafarullah, and Shaheen
20 Akhter, 1 natives and citizens of Bangladesh, seek review of
21 the orders of the BIA denying their motion to reopen their
22 removal proceedings. We assume the parties’ familiarity
23 with the underlying facts and the procedural history of the
24 case.
25 We review the BIA’s denial of a motion to reopen for
26 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
1
Petitioners Mohammed Jafar Ullah and Mamtaj Begum are
husband and wife, respectively, and the remaining
petitioners are their children.
2
1 (2d Cir. 2006). An alien who has been ordered removed may
2 typically file one motion to reopen, but he or she must do
3 so within 90 days of the final administrative decision. 8
4 U.S.C. § 1229a(c)(7)(A), 1229a(c)(7)(C)(i). There is no
5 dispute that, with respect to each petitioner, the motion to
6 reopen that is the subject of this petition was untimely and
7 number-barred. See id.; 8 C.F.R. § 1003.2(c)(2). However,
8 seeking to avoid these procedural restrictions, petitioners
9 argued to the BIA that “changed country conditions” in
10 Bangladesh excused them from the time limits on motions to
11 reopen. 8 U.S.C. § 1229a(c)(7)(C)(ii).
12 In a May 14, 2009 order, the BIA denied the motion as
13 to petitioners Mamtaj Begum, Jahed Mohammed Jafarullah,
14 Fahad Mohammed Jafarullah, and Shaheen Akhter. The agency
15 reasoned that these petitioners had “not adequately
16 demonstrated changed country circumstances in Bangladesh
17 since their last motion in 2008 or even since their removal
18 hearing in 1999 to support their claim that their fears are
19 well-founded or that there is a clear probability of
20 persecution or torture if they are forced to return to
21 Bangladesh.” Having reviewed the documentation that
22 petitioners submitted in support of their motion, we
3
1 conclude that substantial evidence supports the BIA’s
2 conclusion that these four petitioners failed to establish
3 changed country conditions in support of their motion to
4 reopen. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
5 Cir. 2008). Moreover, a reasonable fact-finder would not be
6 compelled to conclude that the BIA ignored any material
7 evidence that petitioners submitted. See Wei Guang Wang v.
8 BIA, 437 F.3d 270, 275 (2d Cir. 2006). Accordingly, with
9 respect to petitioners Mamtaj Begum, Jahed Mohammed
10 Jafarullah, Fahad Mohammed Jafarullah, and Shaheen Akhter,
11 the petition for review is denied.
12 In a separate May 14, 2009 order, the BIA denied the
13 motion to reopen by Mohammed Jafar Ullah based on the
14 agency’s “departure bar” regulation, 8 C.F.R. § 1003.2(d),
15 reasoning that it lacked jurisdiction to consider the motion
16 because Ullah had been removed from the United States. On
17 appeal, Ullah relies on William v. Gonzales, 499 F.3d 329
18 (4th Cir. 2007), to argue that the departure bar regulation
19 “conflicts” with the current provisions of the Immigration
20 and Nationality Act (“INA”) relating to motions to reopen
21 removal proceedings, 8 U.S.C. § 1229a(c)(7). 1 We decline
1
In In re Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA
2008), the BIA rejected the interpretation of the INA
4
1 to address this argument. We do so because, even if we were
2 to resolve the issue in Ullah’s favor, a remand to the BIA
3 would be futile. “[O]ur decision to uphold the agency
4 decision or to remand for further proceedings depends on how
5 ‘confidently’ we can ‘predict that the agency would reach
6 the same decision absent the errors that were made.’”
7 Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008)
8 (quoting Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339
9 (2d Cir. 2006)). Ullah’s motion, which was otherwise time-
10 and number-barred, was based on the same legal argument —
11 i.e., “changed country conditions” in Bangladesh, 8 U.S.C. §
12 1229a(c)(7)(C)(ii) — and similar supporting documentation as
13 the motion filed by the other members of his family.
14 Because we have already concluded that the BIA’s denial of
offered by the Fourth Circuit in William. Id. at 653-60.
At least two of our sister circuits have reached a similar
conclusion as that reached by the BIA. See Rosillo-Puga v.
Holder, 580 F.3d 1147, 1153-58 (10th Cir. 2009) (expressly
rejecting the analysis of the William majority); Pena-Muriel
v. Gonzales, 489 F.3d 438, 441-43 (1st Cir. 2007) (rejecting
the argument that the departure bar regulation was impliedly
repealed by the Illegal Immigration Reform and Immigrant
Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009
(1996)); see also Mendiola v. Holder, 585 F.3d 1303, 1310
(10th Cir. 2009) (following Rosillo-Puga). But see Coyt v.
Holder, 593 F.3d 902, 907 (9th Cir. 2010) (holding that the
departure bar “cannot apply to cause the withdrawal of an
administrative petition filed by a petitioner who has been
involuntarily removed”).
5
1 the motion to reopen as to the other four petitioners was
2 not an abuse of its discretion, we are “confident[]” that
3 the agency would reach the same conclusion as to Ullah if we
4 were to remand and that it would be within its discretion to
5 do so. Accordingly, Ullah’s petition is denied.
6 We have reviewed all of petitioners’ arguments and find
7 them to be without merit. Accordingly, the petition for
8 review is DENIED.
9 For the Court
10 Catherine O’Hagan Wolfe, Clerk
11
12
13
6