Shah v. Holder

United States Court of Appeals
For the First Circuit

No. 13-1905

ALI SHAH,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General of the United States,

Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.

Stephanie F. Dyson and Cayer Dyson Law, P.C. on brief for
petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Cindy S. Ferrier, Assistant Director, and Song E. Park, Senior
Litigation Counsel, Office of Immigration Litigation, U.S.
Department of Justice, on brief for respondent.

July 2, 2014
 LYNCH, Chief Judge. This case is a good example for why

arguments should be made to the Immigration Judge ("IJ") and the

Board of Immigration Appeals ("BIA") in the first instance, and why

the arguments actually made should be clear. Ali Shah, a citizen

and native of Pakistan, petitions for review of a June 20, 2013

order of the BIA denying his motion to reopen removal proceedings.

He argues that the BIA did not properly address either of his

arguments going to earlier adverse credibility findings. He makes

to us a series of arguments in support of reopening that were never

presented to the BIA. The BIA did not abuse its discretion in

denying Shah's motion to reopen and we do not have jurisdiction to

consider freshly minted arguments not presented to the agency, so

we both dismiss portions of his petition for lack of jurisdiction

and we deny his petition for review as to other claims.

I.

Shah entered the country in 2002. We give only a brief

summary of Shah's removal proceedings, which have lasted for well

over ten years. He has had the benefit of two de novo hearings

before two different IJs, and his appeals have been considered by

the BIA on multiple occasions and petitions for review to the Third

Circuit. Shah's motion for a change of venue was granted and this

matter was transferred from Philadelphia to Boston in 2009. We

focus on proceedings that followed the change of venue.

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A. Background

Shah entered the United States without inspection at or

near Lake Charles, Louisiana around July 15, 2002. After receiving

a Notice to Appear around July 19 charging him with removability

for being present in the United States without being admitted or

paroled, 8 U.S.C. § 1182(a)(6)(A)(i), Shah conceded removability

and filed for asylum, withholding of removal, and protection under

the Convention Against Torture. Specifically, he alleged that he

was persecuted in Pakistan because of his membership in the Nawaz

Group of the Pakistani Muslim League ("PML"). Shah joined the PML

in 1996, when he was about sixteen years old, and held the position

of propaganda officer for his village. He alleged that he was

arrested in October 1996 as a result of his actions on behalf of

the PML, and that he was detained, beaten daily, and told that if

he did not cease his activities on behalf of the PML he would be

killed.

We skip to the 2011, post-transfer hearing. The hearing

was unsuccessful for him, and the result was affirmed by the BIA.

That led to the denial of the motion to reopen, which is our

subject matter.

B. 2011 IJ Hearing and BIA Affirmance

Shah testified and presented evidence of his past

persecution claims to an IJ in Boston in July 2011. The IJ also

considered Shah's testimony and submitted evidence from earlier

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hearings. The focus of the hearing was on Shah's alleged past

arrest and persecution at the hands of Pakistani police, which was

said to have resulted from his membership in the PML political

party. Shah's 2011 testimony sought to explain inconsistencies in

his story.1 See Shah v. Att'y Gen., 273 F. App'x 176, 176-78 (3d

Cir. 2008) (recounting Shah's first hearing before an IJ in

Philadelphia and resulting lack-of-credibility finding). In

particular, Shah testified to the circumstances of his arrest and

later release in Pakistan, the duration of his detention, and his

resulting medical treatment.

At the conclusion of the 2011 hearing, the IJ denied

Shah's petition for asylum and withholding of removal, finding him

not credible and not to have made out his claim of past persecution

1
Inconsistencies in Shah's testimony had led to an adverse
credibility finding in an earlier set of hearings. Shah's first
merits hearing before an IJ was in August 2004, and the IJ found
him not to be credible. When the BIA reviewed that decision in
2006, it adopted the IJ's conclusion but did not specifically
discuss whether the record supported the IJ's adverse credibility
finding. Shah v. Att'y Gen., 273 F. App'x 176, 178 (3d Cir. 2008).
Shah then petitioned for review in the Third Circuit, and the
government filed a motion to remand to the BIA for further
consideration of the credibility issue, which was granted. Id. On
remand, the BIA concluded that the record did not support the IJ's
adverse credibility finding; however, the Board nonetheless denied
Shah's petition on the grounds that he failed to meet his burden of
proof because he failed to provide reasonably available
corroborating evidence. Id. Shah again petitioned for review in
the Third Circuit. That court, on grounds that are not relevant
here, remanded to the BIA with instructions to remand to the IJ so
that Shah could have an opportunity to present corroborating
evidence. Id. at 180. We focus here on the IJ's 2011 de novo
review of evidence that Shah presented on remand from the Third
Circuit.

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or of likely future persecution. The IJ highlighted a series of

significant inconsistencies between his 2011 testimony and his

testimony in earlier asylum proceedings. The IJ noted that Shah's

previous testimony that he was taken into custody alone clashed

with his current testimony that he was arrested alongside his

junior secretary, and that Shah was "unable to provide a

satisfactory explanation for this material discrepancy." Likewise,

the IJ noted Shah's varying descriptions of how long he was

detained by the Pakistani police: in 2011, he said he was detained

for about one month, while he had previously testified that he was

held for five or six days. The IJ also found Shah's proffered

documentary evidence to be problematic, specifically that the PML

membership card he submitted to demonstrate his party affiliation

was blank. The IJ denied the application for lack of credibility,

and did not render a decision as to whether the documents could

sustain his asylum claim in any event.

Shah appealed the IJ's decision, and the BIA found that

the IJ's adverse credibility finding was "based on specific

examples in the record of inconsistent statements" and was not

clearly erroneous. After affirming the IJ's credibility

determination, the BIA found it unnecessary to determine whether

Shah would have established his eligibility for asylum if he had

been found credible. Shah did not petition for review of that

ruling.

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C. BIA Decision on Motion to Reopen

Shah filed a timely motion to reopen. The entirety of

petitioner's argument in that motion was as follows:

[T]he IJ made his adverse credibility
determination by looking exclusively at
[Shah]'s testimony from 2004 and 2011. The IJ
found supposed inconsistencies between the two
sets of testimony and denied [Shah]'s
application. No other reasons for the IJ's
adverse credibility determination were
included in the BIA's decision. Now, [Shah]
is providing new evidence in the form of three
affidavits from close family and friends that
corroborate his claims of torture and
persecution in Pakistan, and help him make a
prima facie showing of having a well-founded
fear for his claim of asylum.

Shah's motion was, as the Board noted, "accompanied by affidavits

and death certificates of individuals" from his home town, along

with "evidence that the Taliban has recently threatened his family

members because they are considered 'pagan' and 'spies.'" On June

20, 2013, the BIA denied petitioner's motion to reopen. The BIA

concluded that the harm petitioner "claims to fear appears to be

specific to the Swat Valley, and [Shah] has neither argued nor

offered evidence that it would be unreasonable for him to relocate

to safety elsewhere in Pakistan," citing In re D-I-M—, 24 I. & N.

Dec. 448, 450-51 (BIA 2008). This petition for review followed.

II.

"Motions to reopen removal proceedings are disfavored as

contrary to 'the compelling public interests in finality and the

expeditious processing of proceedings.'" Raza v. Gonzales, 484

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F.3d 125, 127 (1st Cir. 2007) (quoting Roberts v. Gonzales, 422

F.3d 33, 35 (1st Cir. 2005)). As a result, the BIA enjoys

"considerable latitude" in this area. Id. We review the BIA's

denial of a motion to reopen for abuse of discretion, Pérez v.

Holder, 740 F.3d 57, 61 (1st Cir. 2014), and uphold the agency's

decision "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," Liu v. Holder, 727 F.3d

53, 56 (1st Cir. 2013) (quoting Zhu v. Holder, 622 F.3d 87, 91 (1st

Cir. 2010)) (internal quotation marks omitted).

"There are two threshold requirements for a motion to

reopen: that it establish a 'prima facie case for the underlying

substantive relief sought' and that it introduce 'previously

unavailable, material evidence." Fesseha v. Ashcroft, 333 F.3d 13,

20 (1st Cir. 2003) (quoting INS v. Abudu, 485 U.S. 94, 104 (1988)).

If a petitioner fails to meet either requirement, the BIA may deny

a motion to reopen. Smith v. Holder, 627 F.3d 427, 433 (1st Cir.

2010). Petitioner's motion to reopen fails on the first prong.

In all of the removal proceedings that came before

petitioner's motion to reopen, his asylum claim was based on his

allegations of past persecution by the Pakistani police on account

of his membership in and actions on behalf of the PML. In his

motion to reopen, petitioner changed course. His newly submitted

evidence aimed to make a prima facie showing that he had a fear of

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future persecution by the Taliban, and did not go to whether his

prior testimony was credible. That was the effect of submitted

affidavits and death certificates of individuals in his hometown in

Pakistan's Swat Valley. The BIA rejected the argument.

Petitioner, in a non sequitur, faults the BIA for not

using this evidence to "address the credibility issues . . . raised

in his motion to reopen." However, his motion to reopen offered no

explanation of how or if the new evidence rebutted the IJ's adverse

credibility finding. The BIA plainly did not abuse its discretion

in evaluating the new evidence on its own terms, that is, in

relation to petitioner's newly stated fear of future persecution by

the Taliban. Cf. Lemus v. Gonzales, 489 F.3d 399, 401 (1st Cir.

2007) (affirming BIA's denial of motion to reopen where "the newly

proffered information does nothing to rehabilitate the petitioner's

failed credibility" and where the administrative disposition of the

case "hinged mainly on an adverse credibility determination").

Based on the motion itself and accompanying evidence, the

BIA evaluated petitioner's motion to reopen as a claim of feared

future persecution based on the Taliban's activities in the Swat

Valley, and found the new evidence insufficient to warrant

reopening. If petitioner intended some other use for the evidence,

he should have said so.

That leads to his second argument. Where, as here, an

applicant for asylum has not established past persecution, "the

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applicant shall bear the burden of establishing that it would not

be reasonable for him or her to relocate [within the applicant's

home country], unless the persecution is by a government or is

government-sponsored." 8 C.F.R. § 1208.13(b)(3)(i). Petitioner's

motion to reopen made absolutely no attempt to meet this burden,

and the BIA, quite properly, so found.

Although petitioner, in his motion, never asserted that

his fear of persecution was not confined to the Swat Valley region

or addressed relocation at all, he argues that the BIA "improperly"

assumed that his fear of persecution is confined to the Swat Valley

region. Not so. None of the evidence that accompanied the motion

to reopen even addressed the internal relocation issue. See

Abdullah v. Gonzales, 461 F.3d 92, 101 (1st Cir. 2006) (affirming

denial of motion to reopen where petitioner's motion was not

accompanied by any new evidence on the lack of feasibility of

relocating elsewhere in Pakistan).

In fact, the only evidence petitioner offers in support

of this argument was not presented to the BIA: the 2012 U.S.

Department of State Country Report on Pakistan. Put simply, the

BIA could not have, as petitioner argues, abused its discretion in

overlooking details of the Country Report where the report was not

even in the administrative record. Further, we reject petitioner's

request for us to take judicial notice of the information contained

in the Country Report, as it was "neither introduced into the

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record nor included in support" of the motion to reopen. Hussain

v. Holder, 576 F.3d 54, 58 (1st Cir. 2009); see also 8 U.S.C.

§ 1252(b)(4)(A) (requiring court of appeals to decide petition

"only on the administrative record on which the order of removal is

based").

We likewise do not consider petitioner's argument, also

presented for the first time to this court, that the BIA should

have considered sua sponte whether the allegations of persecution

by the Taliban were in fact government-sponsored. We have

consistently held that "arguments not raised before the BIA are

waived due to a failure to exhaust administrative remedies."

Molina De Massenet v. Gonzales, 485 F.3d 661, 664 (1st Cir. 2007).

Petitioner cannot rescue his motion to reopen by introducing new

evidence and new arguments for the first time before this court.

The petition for review is denied as to those arguments

presented to the agency. It is otherwise dismissed for lack of

jurisdiction.

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