17-1228
Akhtar v. Whitaker
BIA
A098 929 525
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 20th day of December, two thousand
eighteen.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
ARFAN AKHTAR,
Petitioner,
v. 17-1228
NAC
MATTHEW G. WHITAKER, ACTING
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Amy N. Gell, Gell & Gell, New
York, NY.
FOR RESPONDENT: Chad A. Readler, Principal
Deputy Assistant Attorney
General; Paul Fiorino, Senior
Litigation Counsel; Erik R.
Quick, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Arfan Akhtar, a native and citizen of
Pakistan, seeks review of a March 27, 2017, decision of the
BIA denying his untimely motion to reopen his removal
proceedings. In re Arfan Akhtar, No. A098 929 525 (B.I.A.
Mar. 27, 2017). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
We review the denial of a motion to reopen for abuse of
discretion and related country conditions findings for
substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d
138, 168-69 (2d Cir. 2008). An alien may move to reopen
removal proceedings no later than 90 days after the final
administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i);
8 C.F.R. § 1003.2(c)(2). There is no dispute that Akhtar’s
2016 motion was untimely because his removal order became
final in 2014. 8 U.S.C. § 1101(a)(47)(B). But the time
limitation does not apply to a motion to reopen if it is
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filed to apply for asylum “based on changed country
conditions arising in the country of nationality . . . if
such evidence is material and was not available and would
not have been discovered or presented at the previous
hearing.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii). Even where there has been a material
change in country conditions, the BIA may nevertheless deny
reopening where a movant fails to demonstrate prima facie
eligibility for relief from removal. See INS v. Abudu, 485
U.S. 94, 104-05 (1988). To demonstrate prima facie
eligibility for relief from removal, a movant “must show a
‘realistic chance’ that []he will be able to obtain such
relief.” Jian Hui Shao, 546 F.3d at 168. For the reasons
that follow, we conclude that the BIA did not abuse its
discretion in denying reopening.
The BIA did not err in denying reopening on the ground
that Akhtar failed to demonstrate that the harm he feared
was on account of a protected ground as required for asylum
and withholding of removal. Id.; 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1231(b)(3)(A). To establish
eligibility for asylum and withholding of removal in the
absence of past persecution, an applicant must demonstrate
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a well-founded fear or likelihood of future persecution on
account of “race, religion, nationality, membership in a
particular social group, or political opinion.” Rodas
Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010) (quoting
8 U.S.C. § 1158(b)(1)(B)(i)).
First, Akhtar does not challenge the BIA’s
determination that he failed to submit evidence that
Pakistanis who have lived in the United States constitute a
cognizable particular social group. He has therefore failed
to demonstrate error in the BIA’s determination that he did
not establish his prima facie eligibility for asylum or
withholding of removal based on that alleged protected
ground. See Paloka v. Holder, 762 F.3d 191, 196 (2d Cir.
2014) (observing that a particular social group must be
legally cognizable); Norton v. Sam’s Club, 145 F.3d 114,
117 (2d Cir. 1998) (“Issues not sufficiently argued in the
briefs are considered waived and normally will not be
addressed on appeal.”).
Second, the BIA reasonably concluded that the harm
Akhtar feared from his brother was due to a personal
vendetta and was not because of Akhtar’s political opinion.
See Matter of N–M–, 25 I. & N. Dec. 526, 531-32 (B.I.A.
4
2011) (suggesting that where the alleged persecutor acts
“solely out of personal revenge or a desire to avoid the
exposure of a lucrative scheme of corruption, without a
significant concern about the alien’s political beliefs,
perceived or otherwise,” the claim cannot satisfy
the nexus requirement). Akhtar did not assert that he
cooperated against, or was threatened by, his brother
because he opposed corruption or held any political
opinion. Indeed, Akhtar participated in the fraud with his
brother. The BIA therefore reasonably concluded that Akhtar
failed to demonstrate his prima facie eligibility for
asylum or withholding of removal based on his political
opinion. Id.; Jian Hui Shao, 546 F.3d at 168.
Nor did the BIA err in determining that Akhtar failed
to demonstrate his prima facie eligibility for CAT relief
based on his fear of harm from his brother. Jian Hui Shao,
546 F.3d at 168. The BIA also reasonably declined to credit
Akhtar’s father’s letter—the only independent evidence that
Akhtar’s brother had threatened Akhtar—because it was
authored by an interested witness unavailable for cross
examination. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d
Cir. 2013) (deferring to agency’s determination that
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spouse’s letter was entitled to “very little evidentiary
weight” “because it was unsworn and because it was
submitted by an interested witness”). The BIA did not err
in finding that the harassment complaint and Pretrial
Services memorandum did not establish a likelihood of
torture because they were based on threats Akhtar’s brother
made to Akhtar’s nephew rather than Akhtar. Id. at 332.
Moreover, the BIA did not err by declining to credit
Akhtar’s own assertions concerning his brother’s threats in
light of the underlying adverse credibility determination.
Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146 (2d Cir.
2007); see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d
Cir. 2007) (“So a single false document or a single
instance of false testimony may (if attributable to the
petitioner) infect the balance of the alien’s
uncorroborated or unauthenticated evidence.”). Because the
BIA reasonably accorded minimal weight to the only evidence
of threats, it did not err in concluding that Akhtar failed
to demonstrate his prima facie eligibility for CAT relief.
See In re M–B–A–, 23 I. & N. Dec. at 479-80; Jian Hui Shao,
546 F.3d at 168.
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Because the BIA did not abuse its discretion in denying
reopening based on Akhtar’s failure to establish his prima
facie eligibility for relief, we do not reach the BIA’s
alternative conclusion that Akhtar failed to demonstrate a
material change in country conditions. See INS v. Bagamasbad,
429 U.S. 24, 25 (1976) (“As a general rule courts and agencies
are not required to make findings on issues the decision of
which is unnecessary to the results they reach.”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe
Clerk of Court
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