17-1677
Rahman v. Whitaker
BIA
A089 114 546
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 11th day of February, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
MAKSUDUR RAHMAN,
Petitioner,
v. 17-1677
NAC
MATTHEW G. WHITAKER, ACTING
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Khagendra Gharti-Chhetry,
New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Jessica E.
Burns, Senior Litigation Counsel;
Edward C. Durant, 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 Maksudur Rahman, a native and citizen of the
Bangladesh, seeks review of an April 28, 2017, decision of
the BIA denying his motion to reopen. In re Maksudur Rahman,
No. A089 114 546 (B.I.A. Apr. 28, 2017). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
We review the BIA’s denial of Rahman’s motion to reopen
for abuse of discretion and consider whether its conclusion
regarding changed country conditions is supported by
substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d
138, 168-69 (2d Cir. 2008). It is undisputed that Rahman’s
2016 motion to reopen was untimely as it was filed
approximately four years after his removal order. See
8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
Accordingly, to succeed on his motion to reopen, Rahman had
to demonstrate both his prima facie eligibility for the
relief sought (asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”)) and that his
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untimely filing was excused. Poradisova v. Gonzales, 420
F.3d 70, 78 (2d Cir. 2005). The time limitation for filing
a motion to reopen does not apply if reopening is sought to
apply for asylum and the motion “is based on changed
country conditions arising in the country of nationality or
the country to which removal has been ordered, if such
evidence is material and was not available and would not
have been discovered or presented at the previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8
C.F.R. § 1003.2(c)(3)(ii). The agency did not abuse its
discretion in denying reopening because, as discussed
below, Rahman failed to establish either his prima facie
eligibility relief or a material change in conditions given
the underlying adverse credibility determination and the
lack of evidence that he would be targeted as a result of
the rise in extremist violence.
Rahman asserted that Islamic terrorists would perceive
him as an outsider for living in the United States and target
him on that basis. He also claimed that the ruling Awami
League was exploiting public fear stemming from this
terrorist violence to persecute political opponents. He also
alleged that members of the Awami League continue to seek him
out and target his family.
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First, the BIA did not err in denying the motion based
on Rahman’s failure to file a new asylum application because
a motion to reopen “must be accompanied by the appropriate
application for relief.” 8 C.F.R. § 1003.2(c)(1).
Second, as the agency found, Rahman’s county conditions
evidence of the rise in terrorist incidents is not material
because general violence or crime is not a basis for asylum
or withholding of removal. See Melgar de Torres v. Reno, 191
F.3d 307, 314 (2d Cir. 1999); Matter of Mogharrabi, 19 I. &
N. Dec. 439, 447 (BIA 1987). Moreover, his evidence that
foreign diplomats are seeking more security in light of this
terrorist violence does not support his speculative claim
that terrorists will target him as an “outsider” or
“foreigner” as he has not described how or why terrorist
organizations would view him as similarly situated to foreign
diplomats. See Jian Xing Huang v. U.S. INS, 421 F.3d 125,
129 (2d Cir. 2005) (“In the absence of solid support in the
record,” an applicant’s “fear is speculative at best.”); see
also C.F.R. §§ 1208.13(b)(2)(iii), 1208.16(b)(2) (providing
that applicant can establish fear of future persecution by
showing he would be “singled out” for harm); Mu-Xing Wang v.
Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (requiring CAT
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applicant to show that someone in his “particular alleged
circumstances” would likely be tortured).
Third, Rahman’s contention that the country conditions
evidence reflects a more dangerous situation “for those who
have previously been the target of violent individuals,”
fails because he was found not credible in the underlying
proceedings. The BIA did not err in finding that Rahman’s
letters from family members and friends were insufficient to
overcome that prior adverse credibility determination. See
Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir. 2007)
(holding that the BIA may decline to credit documentary
evidence submitted with a motion to reopen if it has
“legitimate concerns about [the petitioner’s] credibility”
based on a previous adverse credibility determination and the
petitioner offers no other corroborating evidence); see also
Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We
generally defer to the agency’s evaluation of the weight to
be afforded an applicant’s documentary evidence.”).
Thus, on this record, the agency was not compelled to
conclude that Rahman’s evidence reflected a change in
conditions material to his fear of harm or his prima facie
eligibility for relief. See 8 U.S.C. § 1252(b)(4)(B)
(“[A]dministrative findings of fact are conclusive unless any
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reasonable adjudicator would be compelled to conclude to the
contrary.”); see also Jian Hui Shao, 546 F.3d at 157-58.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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