Chowdhury v. Holder

08-2615-ag Chowdhury v. Holder BIA Defonzo, IJ A96 426 151 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 16 th day of February, two thousand ten. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 ROSEMARY S. POOLER, 10 REENA RAGGI, 11 Circuit Judges. 12 _____________________________________ 13 14 FARHADUL MANNAN CHOWDHURY, 15 Petitioner, 16 17 v. 08-2615-ag 18 NAC 19 ERIC H. HOLDER JR., * 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 25 * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. 1 FOR PETITIONER: Salim Sheikh, New York, New York. 2 3 FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney 4 General; Christopher C. Fuller, 5 Senior Litigation Counsel; Zoe J. 6 Heller, Trial Attorney, Office of 7 Immigration Litigation, Civil 8 Division, U.S. Department of Justice, 9 Washington, D.C. 10 11 UPON DUE CONSIDERATION of this petition for review of a 12 decision of the Board of Immigration Appeals (“BIA”), it is 13 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 14 review is DISMISSED in part and DENIED in part. 15 Farhadul Mannan Chowdhury, a native and citizen of 16 Bangladesh, seeks review of a May 6, 2008 order of the BIA 17 affirming the October 19, 2005 decision of Immigration Judge 18 (“IJ”) Paul A. Defonzo, denying his application for asylum, 19 withholding of removal, and relief under the Convention 20 Against Torture (“CAT”). In re Farhadul Mannan Chowdhury, 21 No. A96 426 151 (B.I.A. May 6, 2008), aff’g No. A96 426 151 22 (Immig. Ct. N.Y. City Oct. 19, 2005). We assume the 23 parties’ familiarity with the underlying facts and 24 procedural history of this case. 25 When the BIA affirms and supplements the IJ’s decision 26 but does not adopt the IJ’s adverse credibility 27 determination, we review the IJ’s decision as modified by 2 1 the BIA decision. Xue Hong Yang v. U.S. Dep’t of Justice, 2 426 F.3d 520, 522 (2d Cir. 2005). Here, because the BIA did 3 not adopt the IJ’s adverse credibility finding, but 4 explicitly stated that it was reviewing the claim on the 5 assumption that petitioner’s testimony was credible, we 6 assume the credibility of that testimony. See Yan Chen v. 7 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 8 We review the agency’s factual findings under the 9 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); 10 see also Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 11 281, 289 (2d Cir. 2007). We review de novo questions of law 12 and the application of law to undisputed fact. Salimatou 13 Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 14 I. Asylum 15 As an initial matter, we do not have jurisdiction to 16 review the IJ’s determination that Chowdhury failed to 17 establish “extraordinary circumstances” excusing his failure 18 to file his asylum application within the one-year deadline. 19 8 U.S.C. § 1158(a)(3); see also 8 C.F.R. § 208.4(a)(5) 20 (“extraordinary circumstances” refers to “events or factors 21 directly related to the failure to meet the 1-year 22 deadline). Chowdhury argues that the IJ failed to consider 3 1 his argument that he did not apply for asylum because he 2 thought he could gain residency through employment. 3 However, this argument amounts to nothing more than a 4 challenge to the IJ’s fact-finding with respect to the one- 5 year bar, which this Court does not have jurisdiction to 6 review. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji 7 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330-32 (2d Cir. 8 2006). Accordingly, to the extent Chowdhury challenges the 9 pretermission of his untimely asylum application, we dismiss 10 the petition for review. 11 II. Withholding of Removal 12 We also find that the BIA properly denied Chowdhury’s 13 application for withholding of removal, which is not subject 14 to the one-year bar. With regard to Chowdhury’s testimony 15 that he was threatened, harassed, verbally abused, and 16 manhandled by his former girlfriend’s uncle, a major in the 17 Bangladeshi army, the BIA properly found that he failed to 18 provide sufficient evidence that he suffered this abuse on 19 account of a protected ground. See 8 U.S.C. § 1101(a)(42). 20 By Chowdhury’s own admission, the main goal of his 21 girlfriend’s uncle was to break up their relationship. 22 While Chowdhury believed that the reason was his “religious 4 1 independence,” this is insufficient to bring the uncle’s 2 harassment within the ambit of refugee protection. Cf. 3 Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir. 2006) (“The 4 critical showing that an applicant must make . . . is that 5 he has suffered past persecution, or fears future 6 persecution, on the basis of religion.”). Accordingly, the 7 BIA’s nexus finding was supported by substantial evidence. 8 See 8 U.S.C. § 1252(b)(4)(B); see also Manzur, 494 F.3d at 9 289. This finding is dispositive of Chowdhury’s claimed 10 fear of future persecution by his former girlfriend’s uncle. 11 In 1982, while Chowdhury was in college and a member of 12 the Bangladesh National Party (BNP), he was physically 13 removed from a rickshaw by student members of a rival 14 political party, held at their “compound” for at least a 15 day, and beaten. The BIA found without further explanation 16 that “this incident alone does not rise to the level of 17 persecution.” It is well established that beatings and 18 torture can constitute persecution, particularly when they 19 occur in the context of a detention. See, e.g., Beskovic v. 20 Gonzales, 467 F.3d 223, 226 (2d Cir. 2006); Yan Chen, 417 21 F.3d at 272, 275. The BIA did not explain why the beatings 22 of Chowdhury occurring in the context of a detention by 5 1 members of the rival party did not constitute past 2 persecution. See Beskovic, 467 F.3d at 227 (“Whether or not 3 [petitioner] is entitled to a presumption of future 4 persecution requires a determination, based on the correct 5 legal standard, of whether he suffered past persecution. 6 Because we cannot determine whether the IJ correctly 7 assessed [petitioner’s] claim of past persecution, we are 8 stymied.”). 9 However, even if the BIA’s explanation was insufficient, 10 there is no evidence in the record that the government 11 failed to prevent the actions of the student members of the 12 rival political party. See Pavlova v. INS, 441 F.3d 82, 91 13 (2d Cir. 2006) (“[W]e have never held that direct 14 governmental action is required to make out a claim of 15 persecution. On the contrary, it is well established that 16 private acts may be persecution if the government has proved 17 unwilling to control such action.”) (internal quotation 18 marks omitted). Because Chowdhury has not presented 19 evidence that the government was “unwilling to control such 20 actions,” id., he cannot establish persecution based on this 21 record. Remand is therefore futile. See Cao He Lin v. U.S. 22 Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005). 6 1 III. CAT Relief 2 Finally, we find that the BIA’s denial of CAT relief is 3 supported by substantial evidence. Chowdhury bases his CAT 4 claim on the same evidence of his withholding of removal 5 claim, and he fails to indicate anything in the record that 6 would a compel a conclusion contrary that he would more 7 likely than not be tortured. See 8 U.S.C. § 1252(b)(4)(B); 8 see also Manzur, 494 F.3d at 289. 9 For the foregoing reasons, the petition for review is 10 DISMISSED in part and DENIED in part. Any pending motion 11 for a stay of removal in this petition is DISMISSED as moot. 12 13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16 17 7