Islam v. Holder

11-1006-ag Islam v. Holder BIA A096 423 837 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 27th day of September, two thousand twelve. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 REENA RAGGI, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MOHAMMED TAJUL ISLAM, AKA TAJUL ISLAM, 14 AKA MOHAMMED TAZUL ISLAM, 15 Petitioner, 16 17 v. 11-1006-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Usman B. Ahmad, Long Island City, 25 New York. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney 28 General; Douglas E. Ginsburg, 29 Assistant Director; Paul Fiorino, 30 Senior Litigation Counsel, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 Washington, D.C. 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 Mohammed Tajul Islam, a native and citizen of 6 Bangladesh, seeks review of the February 15, 2011, order of 7 the BIA denying his motion to reopen. In re Mohammed Tajul 8 Islam, No. A096 423 837 (B.I.A. Feb. 15, 2011). We assume 9 the parties’ familiarity with the underlying facts and 10 procedural history of the case. 11 We review the BIA’s denial of a motion to reopen for 12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 13 (2d Cir. 2006). The BIA did not abuse its discretion in 14 denying the motion as it was untimely and number-barred and 15 because Islam neither established changed conditions related 16 to a protected ground nor established his prima facie 17 eligibility for relief under the Convention Against Torture 18 (“CAT”). There is no dispute that Islam’s third motion to 19 reopen, filed in June 2010, was numerically barred and 20 untimely, because an Immigration Judge issued a final order 21 of removal in June 2005. 8 U.S.C. § 1229a(c)(7)(A), (C); 22 8 C.F.R. § 1003.2(c)(2). Accordingly, Islam was required to 23 show changed circumstances arising in Bangladesh, and that 2 1 the evidence of the changed circumstances was “material and 2 was not available and could not have been discovered or 3 presented at the previous hearing.” 8 C.F.R. 4 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). 5 As an initial matter, Islam’s argument that he is a 6 member of a social group consisting of persons who have 7 “offended or shamed a police officer and therefore [are] 8 vulnerable to violent attack that will go unpunished by the 9 government” is unexhausted and not subject to review, 10 because he never presented that argument to the BIA. See 11 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-22 (2d 12 Cir. 2007). 13 Even if Islam had raised the social group argument 14 before the BIA, the BIA’s finding that Islam alleged mere 15 “criminal matters” that do not satisfy any established 16 ground for asylum or withholding of removal is supported by 17 substantial evidence, as Islam alleged that he was being 18 targeted by his father-in-law because he left his wife in 19 Bangladesh. Because the alleged change in conditions did 20 not relate to a protected ground, Islam failed to 21 demonstrate a change in conditions material to asylum or 22 withholding of removal. See Jian Hui Shao v. Mukasey, 546 3 1 F.3d 138, 169 (2d Cir. 2008); see also 8 U.S.C. 2 § 1252(b)(4)(B) (Under the substantial evidence standard, 3 the BIA’s factual findings are “conclusive unless any 4 reasonable adjudicator would be compelled to conclude to the 5 contrary.”). 6 Moreover, the BIA reasonably determined that Islam did 7 not present sufficient evidence to establish a prima facie 8 case for relief under the Convention Against Torture 9 (“CAT”). See Jian Hui Shao, 546 F.3d at 169. To establish 10 eligibility for CAT relief, an alien must show that it is 11 more likely than not that he would be tortured by or with 12 the acquiescence of the authorities. See 8 U.S.C. 13 §§ 1208.16(c)(2), 1208.17. Here, the BIA reasonably found 14 that the evidence that Islam provided did not sufficiently 15 establish that he would be unable to obtain the protection 16 of Bangladeshi authorities against any threat posed by his 17 father-in-law, as the only evidence to support his claim 18 that his father-in-law would be allowed to act with impunity 19 was his own speculation. See Jian Xing Huang v. INS, 421 20 F.3d 125, 129 (2d Cir. 2005). Since Islam failed to 21 establish changed country conditions relevant to a protected 22 ground or a prima facie case for asylum, withholding of 4 1 removal, or protection under the CAT, the BIA properly 2 denied his motion to reopen. See 8 U.S.C. 3 § 1229a(c)(7)(C)(ii); INS v. Abudu, 485 U.S. 94, 104-05 4 (1988)(a movant’s failure to establish a prima facie case 5 for the underlying substantive relief sought is a proper 6 ground for the denial of a motion to reopen). 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our review, any stay of 9 removal that the Court previously granted in this petition 10 is VACATED, and any pending motion for a stay of removal in 11 this petition is DISMISSED as moot. Any pending request for 12 oral argument in this petition is DENIED in accordance with 13 Federal Rule of Appellate Procedure 34(a)(2), and Second 14 Circuit Local Rule 34.1(b). 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 18 19 20 5