Khatra v. Holder

11-1238-ag Khatra v. Holder BIA A076 093 486 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 1st day of June, two thousand twelve. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 BARRINGTON D. PARKER, 9 REENA RAGGI, 10 Circuit Judges. 11 _____________________________________ 12 13 HARJIT SINGH KHATRA, 14 Petitioner, 15 16 v. 11-1238-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: William P. Joyce, Boston, M.A. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; Blair T. O’Connor, 27 Assistant Director; Juria L. Jones, 28 Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, D.C. 32 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 4 is DENIED. 5 Petitioner Harjit Singh Khatra, a native and citizen of 6 India, seeks review of a March 2, 2011 decision of the BIA 7 denying his motion to reconsider the denial of his fourth 8 motion to reopen his removal proceedings. In re Harjit 9 Singh Khatra, No. A076 093 486 (B.I.A. Mar. 2, 2011). We 10 assume the parties’ familiarity with the underlying facts 11 and procedural history in this case. 12 As Khatra timely petitioned for review of only the 13 BIA’s denial of his motion for reconsideration of its 14 previous denial of his fourth motion to reopen, we are 15 precluded from considering the merits of the underlying 16 motion to reopen and removal proceedings. See Jin Ming Liu 17 v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). We have 18 reviewed the denial of Khatra’s motion to reconsider for 19 abuse of discretion. See id. A motion to reconsider must 20 “specify errors of law or fact in the [challenged BIA 21 decision] and [] be supported by pertinent authority.” See 22 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b)(1); Ke Zhen 23 Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 24 2001). 2 1 Contrary to Khatra’s argument, the BIA did not abuse 2 its discretion in denying reconsideration because it was 3 permitted to consider the adverse credibility finding made 4 by the immigration judge (“IJ”) in its rejection of Khatra’s 5 claim in his fourth motion to reopen, that he had a well- 6 founded fear of persecution. See Paul v. Gonzales, 444 F.3d 7 148, 154 (2d Cir. 2004) (holding that “an applicant may 8 prevail on a theory of future persecution despite an IJ’s 9 adverse credibility ruling as to past persecution, so long 10 as the factual predicate of the applicant’s claim of future 11 persecution is independent of the testimony that the IJ 12 found not to be credible” (emphasis in original)). As the 13 BIA noted, Khatra had not shown that the factual predicate 14 of his claim of future persecution was independent of the 15 testimony that the IJ found incredible, as his fear of 16 future harm was based on the incidents of past persecution 17 or continuing retaliation for the same political activities 18 alleged in his original asylum application. Because Khatra 19 failed to identify any error in the BIA’s consideration of 20 the adverse credibility determination, he did not satisfy 21 the requirements for reconsideration. See 8 U.S.C. § 22 1229a(c)(6). 3 1 While Khatra argues that the BIA erred by failing to 2 consider his evidence of changed country conditions, the 3 record does not compellingly suggest that the BIA failed to 4 consider any evidence, as the BIA explicitly referenced the 5 background evidence he submitted in its denial of the fourth 6 motion to reopen. See Xiao Ji Chen v. U.S. Dep’t of 7 Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming 8 that the agency “has taken into account all of the evidence 9 before [it], unless the record compellingly suggests 10 otherwise”). Furthermore, in denying reconsideration, the 11 BIA referenced Khatra’s supporting evidence, noting that it 12 suggested that the then-current conditions in India were a 13 continuation of previously existing conditions. 14 Because the remainder of Khatra’s motion to reconsider 15 merely reasserted arguments rejected by the BIA in denying 16 his motion to reopen, the BIA did not abuse its discretion 17 in denying his motion to reconsider. See Jin Ming Liu, 439 18 F.3d at 111 (noting that the BIA does not abuse its 19 discretion by denying a motion to reconsider when the motion 20 merely repeats arguments that the BIA has previously 21 rejected). 22 4 1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our review, any stay of 3 removal that the Court previously granted in this petition 4 is VACATED, and any pending motion for a stay of removal in 5 this petition is DISMISSED as moot. Any pending request for 6 oral argument in this petition is DENIED in accordance with 7 Federal Rule of Appellate Procedure 34(a)(2), and Second 8 Circuit Local Rule 34.1(b). 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 5