Rezaul v. Holder

08-5570-ag Rezaul v. Holder BIA Straus, IJ A079 076 722 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 27 th day of January, two thousand ten. 5 6 PRESENT: 7 JOSEPH M. McLAUGHLIN, 8 JOSÉ A. CABRANES, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _______________________________________ 12 13 KARIM REZAUL, ALSO KNOWN AS KARIM 14 MD REZAUL, 15 16 Petitioner, 17 18 v. 08-5570-ag 19 NAC 20 ERIC H. HOLDER, JR., UNITED STATES 21 ATTORNEY GENERAL, * 22 23 Respondent. 24 ______________________________________ 25 26 FOR PETITIONER: David J. Rodkin, New York, New York. * 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 RESPONDENT: Tony West, Assistant Attorney 2 General, Civil Division; Michelle 3 Gorden Latour, Assistant Director; 4 Kimberly A. Burdge, Trial Attorney, 5 Office of Immigration Litigation, 6 Civil Division, U.S. Department of 7 Justice, Washington, D.C. 8 9 UPON DUE CONSIDERATION of this petition for review of a 10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED that the petition for review 12 is DENIED. 13 Petitioner, Karim Rezaul, a native and citizen of 14 Bangladesh, seeks review of an October 28, 2008 order of the 15 BIA affirming the November 17, 2006 decision of Immigration 16 Judge (“IJ”) Michael Straus denying petitioner’s application 17 for asylum, withholding of removal, and relief under the 18 Convention Against Torture (“CAT”). In re Karim Rezaul, No. 19 A 079 076 722 (B.I.A. Oct. 28, 2008), aff’g No. A 079 076 20 722 (Immig. Ct. Hartford Nov. 17, 2006). We assume the 21 parties’ familiarity with the underlying facts and 22 procedural history of the case. 23 Under the circumstances of this case, we review the 24 decision of the IJ as supplemented by the BIA. See Yan Chen 25 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 26 applicable standards of review are well-established. See 27 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 2 1 510, 513 (2d Cir. 2009). 2 I. Asylum and CAT Relief 3 As the government argues, in his brief before this 4 Court, Rezaul does not challenge the agency’s pretermission 5 of his asylum application or its denial of his application 6 for CAT relief. Thus, we consider only the agency’s denial 7 of Rezaul’s application for withholding of removal. 8 II. Withholding of Removal 9 In his decision, the IJ found that even assuming Rezaul 10 had suffered past persecution, any presumption of a 11 likelihood of persecution had been rebutted. When an 12 applicant for withholding of removal has been found to have 13 suffered past persecution, the presumption of a likelihood 14 of future persecution may be rebutted if an IJ finds that 15 there has been a fundamental change in circumstances such 16 that the applicant’s life or freedom would no longer be 17 threatened in the country of removal on account of one of 18 the five statutory grounds. 8 C.F.R. § 1208.16(b)(1)(i)(A). 19 The BIA has elaborated that the presumption may be rebutted 20 if, in the applicant’s country, the offending government has 21 been overthrown and no longer wields influence, the new 22 leadership does not “harbor the same animosities as the 3 1 old,” and human rights practices have improved. See In re N- 2 M-A-, 22 I & N Dec. 312, 320-21 (BIA 1998); In re O-Z- & I- 3 Z-, 22 I & N Dec. 23, 26-27 (BIA 1998). We find no error in 4 the agency’s conclusion that the government successfully 5 rebutted any presumption of persecution because “there is no 6 basis why [members of the BNP] would continue to look for 7 the respondent, being that he has left Bangladesh for over 8 11 years and has not been politically active since then.” 9 Rather than challenge these findings, Rezaul argues only 10 that the BIA’s decision made no sense because it noted that 11 the BNP’s elevation to power in 2001 could constitute 12 changed country circumstances excusing his late filing of 13 his asylum application, but also found that a change in 14 circumstances rebutted the presumption that he would face 15 future persecution. Such a bare assertion is insufficient 16 to meaningfully challenge the agency’s decision. See Norton 17 v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not 18 sufficiently argued in the briefs are considered waived and 19 normally will not be addressed on appeal.”). 20 Rezaul also argues that the IJ placed insufficient 21 weight on his arrest warrant as proof that Bangladeshi 22 authorities were still looking for him. However, this Court 4 1 generally accords deference to the agency’s evaluation of 2 documentary evidence. Xiao Ji Chen v. U.S. Dep’t of 3 Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding that the 4 weight afforded to the applicant’s evidence in immigration 5 proceedings lies largely within the discretion of the 6 agency). Although Rezaul argues that if the IJ had doubts 7 about the veracity of the arrest warrant, then he should 8 have sent it to be authenticated, the IJ was under no 9 obligation to do so. See 8 C.F.R. § 287.6. 10 III. Motion to Remand 11 Finally, Rezaul argues that the BIA abused its 12 discretion by failing to remand his case so that the IJ 13 could evaluate supplemental documentary evidence. “Such an 14 abuse may be found if the Board’s decision provides no 15 rational explanation, inexplicably departs from established 16 policies, is devoid of any reasoning, or contains only 17 summary or conclusory statements; that is to say, where the 18 Board has acted in an arbitrary or capricious manner.” 19 Singh v. United States Dep’t of Justice, 461 F.3d 290, 293 20 (2d Cir. 2006). Moreover, 8 C.F.R. § 1003.1(d)(3)(iv) 21 states that a “party asserting that the Board cannot 22 properly resolve an appeal without further factfinding must 5 1 file a motion for remand. If further factfinding is needed 2 in a particular case, the Board may remand the proceeding to 3 the immigration judge or, as appropriate, to the Service.” 4 (emphasis added). Here, the BIA reasonably held that remand 5 was unnecessary because the new evidence submitted was: 6 (1) previously available at the time of the proceedings; (2) 7 unauthenticated; and (3) cumulative of previously discussed 8 country conditions evidence. It therefore did not abuse its 9 discretion in declining to remand. See Singh, 461 F.3d at 10 293. 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any pending motion 13 for a stay of removal in this petition is DISMISSED as moot. 14 Any pending request for oral argument in this petition is 15 DENIED in accordance with Federal Rule of Appellate 16 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 21 6