10-286-ag
Chowdhury v. Holder
BIA
A073 663 929
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 13th day of April, two thousand twelve.
PRESENT:
RALPH K. WINTER,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
TOFAIL AHMED CHOWDHURY,
Petitioner,
v. 10-286-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Thomas V. Massucci, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Michael P. Lindemann,
Assistant Director; Daniel I.
Smulow, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
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.
Tofail Ahmed Chowdhury, a native and citizen of
Bangladesh, seeks review of a December 30, 2009 order of the
BIA denying his motion to reopen his removal proceedings.
In re Tofail Ahmed Chowdhury, No. A073 663 929 (B.I.A. Dec.
30, 2009). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). Here, Chowdhury’s motion to reopen was
indisputably untimely, as he filed it more than seven years
after his final order of removal, and number-barred because
it was his second motion to reopen. See 8 U.S.C.
§ 1229a(c)(7)(A), (C). Thus, Chowdhury was required to
establish materially “changed country conditions arising in
the country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii);
see also 8 C.F.R. § 1003.2(c)(3)(ii).
Substantial evidence supports the BIA’s conclusion that
Chowdhury failed to establish a change of country conditions
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material to his claim that he would be persecuted in
Bangladesh because of his former political activities in
support of the Jatiya Party. Chowdhury’s claim of
materially changed conditions rests primarily on his
assertion that, on December 25, 2008, members of the BNP’s
Rapid Action Battalion raided his home and beat his brother
while attempting to arrest Chowdhury for jumping bail.
However, this incident does not differ materially from the
incidents Chowdhury described during his initial merits
hearing, at which time Chowdhury alleged that he himself had
been beaten on multiple occasions, injured by a bomb attack,
and convicted of a crime in retaliation for his political
activities. Additionally, country conditions evidence
demonstrates that even if any of the BNP’s actions were
politically motivated, as Chowdhury asserts, Chowdhury could
defend himself before Bangledesh’s independent judiciary, a
remedy that existed at the time of Chowdhury’s initial
merits hearing and when he filed his motion to reopen.
Indeed, country conditions have arguably improved since the
initial hearing, as the Awami League has returned to power
in Bangladesh with the Jatiya Party as an ally, and the
independent judiciary has stopped overturning politically
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charged decisions unfavorable to the government and granted
bail to thousands of political figures. Accordingly,
substantial evidence supports the BIA’s conclusion that
Chowdhury failed to demonstrate a material change in country
conditions. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169
(2d Cir. 2008) (holding that when the agency explicitly
considers relevant evidence of country conditions in
evaluating a motion to reopen, this Court reviews the
agency’s factual findings under the substantial evidence
standard).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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