Mowla v. Holder

09-5218-ag Mowla v. Holder BIA A073 612 326 A073 612 327 A073 612 328 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 15 th day of December, two thousand ten. 5 6 PRESENT: 7 JON O. NEWMAN, 8 GUIDO CALABRESI, 9 ROBERT A. KATZMANN, 10 Circuit Judges. 11 _________________________________________ 12 13 GOLAM MOWLA, NASIMA KHAN, NUSRAT 14 MOWLA, 15 Petitioners, 16 17 v. 09-5218-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _________________________________________ 23 24 FOR PETITIONERS: Alexander J. Segal, New York, New 25 York. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney 28 General; Lyle D. Jentzer, Senior 29 Litigation Counsel; Jeffrey L. 30 Menkin, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, D.C. 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. 9 Petitioners, natives and citizens of Bangladesh, seek 10 review of a November 20, 2009, order of the BIA denying 11 their motion to reopen. In re Golam Mowla, Nasima Khan, 12 Nusrat Mowla, Nos. A073 612 326/327/328 (B.I.A. Nov. 20, 13 2009). We assume the parties’ familiarity with the 14 underlying facts and procedural history in this case. 15 We review the BIA’s denial of a motion to reopen for 16 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 17 (2d Cir. 2006). An alien ordinarily may only file one 18 motion to reopen and must do so within 90 days of the final 19 administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. 20 § 1003.2(c)(2). However, there is no time or numerical 21 limitation if the alien establishes materially “changed 22 country conditions arising in the country of nationality.” 23 8 U.S.C. 24 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). 2 1 The BIA did not abuse its discretion in finding that 2 petitioners failed to establish changed country conditions 3 in Bangladesh sufficient to excuse the untimely filing of 4 their motion to reopen. The BIA properly noted that, “the 5 record as it existed at the time of the Immigration Judge’s 6 August 31, 1998, decision . . . is void of any evidence of 7 conditions in Bangladesh at that time.” Therefore, because 8 petitioners submitted evidence demonstrating only recent 9 conditions in Bangladesh, as opposed to evidence 10 establishing a change in conditions between the initial 11 proceedings and the motion to reopen, see 8 C.F.R. 12 § 1003.2(c)(3)(ii), the BIA reasonably found that 13 petitioners failed to show changed conditions in Bangladesh 14 sufficient to warrant reopening. See Matter of S-Y-G-, 24 15 I. & N. Dec. 247, 253 (BIA 2007) (“In determining whether 16 evidence accompanying a motion to reopen demonstrates a 17 material change in country conditions that would justify 18 reopening, we compare the evidence of country conditions 19 submitted with the motion to those that existed at the time 20 of the merits hearing below.”); see also INS v. Abudu, 485 21 U.S. 94, 107, 110 (1988) (describing motions to reopen as 22 “disfavored” and noting that “the moving party bears a heavy 3 1 burden” in demonstrating that reopening is warranted on the 2 basis of newly discovered evidence). Furthermore, contrary 3 to petitioners’ argument, the BIA was under no obligation to 4 take judicial notice of country conditions evidence not in 5 the record. See 8 C.F.R. § 1003.1(d)(3)(iv); cf. Chhetry v. 6 U.S. Dep’t of Justice, 490 F.3d 196, 199-200 (2d Cir. 2007) 7 (quoting Hoxhallari v. Gonzales, 468 F.3d 179, 186 n.5 (2d 8 Cir. 2006) (per curiam) (recognizing the permissive nature 9 of the BIA’s authority to “exercise independent discretion” 10 in taking notice of commonly known facts)); Yang v. McElroy, 11 277 F.3d 158, 163 n.4 (2d Cir. 2002) (finding it “well- 12 settled that the BIA has the authority to take 13 administrative notice of current events”). 14 Moreover, although, as petitioners point out, the BIA 15 acknowledged that the record included evidence “indicating 16 that Islamic fundamentalist[s] and militants in Bangladesh 17 have increased their influence over the political process, 18 attacked religious minorities and moderate Muslims, and 19 directed their ire against any individuals or groups that 20 profess secularism,” the BIA nevertheless reasonably found 21 that the general rise in Islamic fundamentalism was not 22 material to petitioners’ specific claim that they would be 4 1 targeted as “Americanized Bangladeshis” or that petitioner 2 Nusrat Mowla would be forced into marriage. See Melgar de 3 Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999) 4 (“General violence in [a country] does not constitute 5 persecution, nor can it form a basis for petitioner’s well- 6 founded fear of persecution”). Accordingly, the BIA did not 7 abuse its discretion in denying the motion as petitioners 8 failed to demonstrate their prima facie eligibility for 9 relief. 8 C.F.R. § 1003.2(c)(1), (3)(ii); see Kaur v. BIA, 10 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any stay of 13 removal that the Court previously granted in this petition 14 is VACATED, and any pending motion for a stay of removal in 15 this petition is DISMISSED as moot. Any pending request for 16 oral argument in this petition is DENIED in accordance with 17 Federal Rule of Appellate Procedure 34(a)(2), and Second 18 Circuit Local Rule 34.1(b). 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 5