Raza v. Gonzales

United States Court of Appeals
For the First Circuit

No. 06-1672

MUDASER RAZA,

Petitioner,

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,
Selya and Stahl, Senior Circuit Judges.

Marshall A. Mintz on brief for petitioner.
Peter D. Kessler, Assistant Attorney General, Civil Division,
Mark Walters, Assistant Director, Office of Immigration Litigation,
and Dalin R. Holyoak, Trial Attorney, United States Department of
Justice, on brief for respondent.

April 19, 2007
 SELYA, Senior Circuit Judge. The petitioner seeks

judicial review of a decision of the Board of Immigration Appeals

(BIA) denying his motion to reopen a removal proceeding. He

asserts that the BIA abused its discretion by failing to consider

changed circumstances in his homeland and, instead, ruling that his

motion was numerically and temporally barred. Discerning neither

an abuse of discretion nor an error of any kind, we deny the

petition.

The basic facts are relatively straightforward. The

petitioner, Mudaser Raza,1 is a twenty-seven-year-old Pakistani

national who unlawfully entered the United States in the fall of

2000. On December 6, 2000, the authorities arrested the petitioner

and initiated a removal proceeding.

In an appearance before an immigration judge (IJ) on

November 29, 2001, the petitioner conceded removability and applied

for an adjustment of status based on an ostensible marriage to an

American citizen. On July 2, 2002, the IJ pretermitted this

application, finding that the petitioner had lied, had submitted

false documents, and in any event, had failed to satisfy the

requirements of the applicable adjustment of status statute. See

8 U.S.C. § 1255(a). Accordingly, the IJ ordered removal.

1
The record reflects various spellings of the petitioner's
first name. For simplicity's sake, we use the spelling employed in
the petitioner's brief.

-2-
 The petitioner did not perfect an appeal of this removal

order to the BIA. That lapse did not signal the end of the matter,

however; a month after the appeal period had expired, the

petitioner asked the BIA to remand his case to the IJ. The BIA

denied the motion to remand on December 23, 2003.

On March 22, 2004, the petitioner lodged another motion

with the BIA. This motion, denominated as a motion to reopen the

removal proceeding, hinged on a claim that he had remarried. The

BIA denied the motion on May 10, 2004, concluding that the

petitioner was not eligible for adjustment of status as he was not

legally admitted into the United States and that, in any event, he

had failed to make a showing sufficient to warrant reopening. See

id. § 1255(a); 8 C.F.R. § 1003.2. The petitioner accepted this

rebuff without seeking judicial review.

On October 17, 2005, the petitioner filed yet another

motion to reopen. In this filing, he alleged that, after his

arrival in the United States, he had apostatized his former Sunni

Islam faith and become an adherent of the Shia Islam faith. He

offered no dates or details in support of these bare assertions,

nor did he furnish any evidence corroborating his claimed

conversion. He further averred — again, without corroboration —

that his Sunni Muslim family members in Pakistan had not only

disowned him but also had threatened him with harm. He said that

he feared what they might do upon his return. Finally, he claimed

-3-
that sectarian violence against Shiite Muslims had escalated in

Pakistan, and that this change in country conditions substantiated

his fear of persecution incident to forced repatriation. To

support that claim, the petitioner proffered a series of internet

articles describing contemporaneous country conditions in Pakistan.

On March 27, 2006, the BIA denied the petitioner's motion

to reopen. It noted that the motion was successive as well as

untimely and, thus, subject to dismissal on numerical and temporal

grounds. Weighing the propriety of a possible exception to these

procedural bars, the BIA determined that the motion (i) rested

"upon mere speculation about what may happen to [the petitioner]

upon his return" and (ii) failed to make out a prima facie case of

eligibility for either asylum or withholding of removal.

Accordingly, the BIA concluded that the motion did not fall within

the scope of any recognized exception to the numerical and temporal

limitations and, so, denied the petitioner's motion. This timely

petition for judicial review followed.

We preface our inquiry into the correctness of the BIA's

ruling with a précis of the applicable legal standards. Motions to

reopen removal proceedings are disfavored as contrary to "the

compelling public interests in finality and the expeditious

processing of proceedings." Roberts v. Gonzales, 422 F.3d 33, 35

(1st Cir. 2005) (quoting Falae v. Gonzales, 411 F.3d 11, 14-15 (1st

Cir. 2005)). As a result, the BIA enjoys considerable latitude in

-4-
deciding whether to grant or deny such a motion. See INS v.

Doherty, 502 U.S. 314, 323 (1992). Judicial review of such

decisions is solely for abuse of discretion. See Roberts, 422 F.3d

at 35; Falae, 411 F.3d at 14. This means, in effect, that such a

decision will stand unless the complaining party can show that the

BIA committed an error of law or exercised its judgment in an

arbitrary, capricious, or irrational way. See Maryam v. Gonzales,

421 F.3d 60, 62 (1st Cir. 2005); Wang v. Ashcroft, 367 F.3d 25, 27

(1st Cir. 2004).

A maze of regulations affects the conduct of removal

proceedings. Under this regulatory scheme, an alien ordinarily may

file only a single motion to reopen a removal proceeding — and that

motion must be submitted within ninety days of the rendition of the

final administrative decision. See 8 C.F.R. § 1003.2(c)(2). This

means that motions to reopen are limited both numerically (one to

a customer) and temporally (a ninety-day window).

The petitioner concedes that the motion sub judice fails

to meet these requirements. Numerically, this is his second such

-5-
motion;2 temporally, the motion was filed more than ninety days

after the final administrative decision ordering his removal.

These numerical and temporal limitations are not

absolute. Of particular pertinence here, a showing of exceptional

circumstances may operate to relax them. See id. § 1003.2(c)(3);

see also Roberts, 422 F.3d at 36. Under this rubric, the agency

may waive numerical and temporal bars to reopening if an alien

makes a convincing demonstration of changed conditions in his

homeland. Those changes, however, must be material to the

underlying substantive relief that the alien is seeking (here,

asylum or withholding of removal) and the evidence tendered in

support thereof must have been unavailable during the prior

proceedings. See 8 C.F.R. § 1003.2(c)(3)(ii). Moreover, such a

showing requires more than a conclusory claim that the sky is

falling: the evidence proffered in support of the motion must, at

a bare minimum, establish a prima facie case sufficient to ground

a claim of eligibility for the underlying substantive relief. See

INS v. Abudu, 485 U.S. 94, 104 (1988); Maryam, 421 F.3d at 62.

2
Actually, this may well be the petitioner's third motion to
reopen. The government contends, with some force, that the
petitioner's initial motion to remand, regardless of its label, in
fact constituted a motion to reopen. In that case, the motion
under review here would be the petitioner's third motion to reopen.
Because it makes no difference to the outcome of this proceeding
whether the current motion is the petitioner's second or third
motion to reopen, we do not pursue this line of inquiry.

-6-
 Against this backdrop, we return to the case at hand.

The petitioner asseverates that the BIA failed to appreciate the

significance of, or even address, the proffered evidence of changed

country conditions. Building on this foundation, he argues that

this failure, which cemented into place the BIA's decision to deny

his motion to reopen as numerically and temporally barred,

constituted an abuse of discretion. The record, however, belies

the foundational premise on which this argument rests: it shows

beyond any peradventure of doubt that the BIA took cognizance of

the petitioner's proffer and adequately explained why the

conclusion that the petitioner urged should not carry the day.

The BIA's memorandum of decision tells the tale. In that

rescript, the BIA explicitly acknowledged the petitioner's claim

that his case fit within the "changed circumstances" exception to

the numerical and temporal limitations. It then limned the

relevant legal standard, considered the petitioner's allegations

(including those pertaining to conversion and evolving country

conditions), and found those thinly supported allegations

insufficient to bring the exception into play. In the process, the

BIA observed that the "country conditions information" did not

specifically refer to the petitioner and that in several critical

aspects the motion was "based upon mere speculation about what may

happen to the [petitioner] upon his return" to Pakistan. Thus,

notwithstanding the contents of his proffer, the petitioner had

-7-
failed to meet the requirements for an exception to the numerical

and temporal limitations.

We discern no flaw in the BIA's analysis. An agency is

not required to dissect in minute detail every contention that a

complaining party advances. It is enough if the agency fairly

considers the points raised by the complainant and articulates its

decision in terms adequate to allow a reviewing court to conclude

that the agency has thought about the evidence and the issues and

reached a reasoned conclusion. See Bowman Transp., Inc. v. Ark.-

Best Freight Sys., Inc., 419 U.S. 281, 285-286 (1974); see also

Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000) (explaining that

the decision must be sufficient to show that the BIA did not

"merely react[]"). The BIA's decision in this case satisfies that

standard.

Alternatively, the petitioner argues that, even if the

BIA did not ignore his proffer, it nonetheless abused its

discretion in denying the motion to reopen. Even without regard to

numerical and temporal limitations, an alien making such an

argument must overcome the obstacle imposed by a "highly

deferential" standard of review. Roberts, 422 F.3d at 35. In this

instance, the petitioner cannot surmount that obstacle. As we

explain below, the BIA's determination that he failed to make out

-8-
a prima facie case of eligibility for appropriate substantive

relief seems unimpugnable.3

We start with the petitioner's claim that he had made out

a case of eligibility for asylum. To qualify for asylum, an

applicant must demonstrate a well-founded fear of persecution on

account of one of five enumerated grounds, namely, "race, religion,

nationality, membership in a particular social group, or political

opinion." 8 C.F.R. § 208.13(b)(2)(A). Neither the statute nor the

regulations defines "persecution" for purposes of asylum, and this

court has opted to decide the question of what constitutes

persecution case by case. See, e.g., Orelien v. Gonzales, 467 F.3d

67, 71 (1st Cir. 2006).

There are, however, some guiding principles. One of

these guidelines is that persecution "always implies some

connection to governmental action or inaction, related to a

protected ground . . . ." Id. at 72. When an asylum claim focuses

on non-governmental conduct, its fate depends on some showing

either that the alleged persecutors are aligned with the government

or that the government is unwilling or unable to control them. See

id.

3
We note in passing that, under the applicable regulations,
the BIA would have had some leeway to deny the motion to reopen
even if the petitioner had made out a prima facie case of
eligibility for substantive relief. See 8 C.F.R. § 1003.2(a).

-9-
 In the case at hand, the petitioner experienced no

persecution while in Pakistan. His professed fear of future

persecution arises out of the possibility of victimization as a

result of his religious conversion. The motion papers, however,

fail to intimate the slightest connection between the forecasted

persecution and any governmental action or inaction. Indeed, the

petitioner's principal claim is that he fears the wrath of his

immediate family because of his apostasy. There is nothing of any

substance to connect those possible depredations to the government.

By the same token, there is nothing that might suffice to ground a

finding — let alone to compel a finding — that the government is

unable or unwilling to combat violence based on religious

preference.

Nor do the internet articles regarding sporadic Sunni-

Shiite violence establish a prima facie case of asylum eligibility.

Even assuming that one accepts the petitioner's claim of conversion

— and that claim is wholly uncorroborated — the fourteen articles

that he has submitted refer generally to militant activity and

episodic violence within Pakistan. This violence is not widespread

but, rather, largely confined to the city of Karachi and Punjab

province. Tellingly, the articles, taken as a group, make it

pellucid that most of Pakistan's Sunnis and Shiites reside

peacefully together. By definition, persecution has a systematic

aspect; it requires more than a showing that scattered incidents of

-10-
violence or harassment are in prospect. See Palma-Mazariegos v.

Gonzales, 428 F.3d 30, 37 (1st Cir. 2005). To cinch matters, the

religiously inspired unpleasantness described in the fourteen

internet articles is, like the feared wrath of the petitioner's

family members, unconnected to the Pakistani government.

To say more would be supererogatory. On this exiguous

showing, it cannot plausibly be said that the BIA abused its

discretion when it concluded that the petitioner, in failing to

demonstrate a reasonable possibility of persecution should he be

returned to Pakistan, fell short of establishing a prima facie case

of eligibility for asylum.

The other strain of substantive relief sought by the

petitioner is withholding of removal. A claim for withholding of

removal "carries with it a more stringent burden of proof than does

a counterpart effort to obtain asylum." Orelien, 467 F.3d at 73

(citing Ang v. Gonzales, 421 F.3d 50, 58 (1st Cir. 2005)).

Presumably for this reason, the petitioner makes no assertion that,

if he failed to make out a prima facie case of eligibility for

asylum, he somehow can be found to have made out a prima facie case

of eligibility for withholding of removal.

We need go no further. The short of it is that the

petitioner's motion to reopen was numerically and temporally

barred. The BIA sufficiently addressed, and supportably rejected,

the petitioner's argument that he qualified for an exception to

-11-
these numerical and temporal limitations. Consequently, adhering

to those bars did not, in the circumstances of this case,

constitute an abuse of discretion.

The petition for review is denied.

-12-