United States Court of Appeals
For the First Circuit
No. 06-1672
MUDASER RAZA,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Selya and Stahl, Senior Circuit Judges.
Marshall A. Mintz on brief for petitioner.
Peter D. Kessler, Assistant Attorney General, Civil Division,
Mark Walters, Assistant Director, Office of Immigration Litigation,
and Dalin R. Holyoak, Trial Attorney, United States Department of
Justice, on brief for respondent.
April 19, 2007
SELYA, Senior Circuit Judge. The petitioner seeks
judicial review of a decision of the Board of Immigration Appeals
(BIA) denying his motion to reopen a removal proceeding. He
asserts that the BIA abused its discretion by failing to consider
changed circumstances in his homeland and, instead, ruling that his
motion was numerically and temporally barred. Discerning neither
an abuse of discretion nor an error of any kind, we deny the
petition.
The basic facts are relatively straightforward. The
petitioner, Mudaser Raza,1 is a twenty-seven-year-old Pakistani
national who unlawfully entered the United States in the fall of
2000. On December 6, 2000, the authorities arrested the petitioner
and initiated a removal proceeding.
In an appearance before an immigration judge (IJ) on
November 29, 2001, the petitioner conceded removability and applied
for an adjustment of status based on an ostensible marriage to an
American citizen. On July 2, 2002, the IJ pretermitted this
application, finding that the petitioner had lied, had submitted
false documents, and in any event, had failed to satisfy the
requirements of the applicable adjustment of status statute. See
8 U.S.C. § 1255(a). Accordingly, the IJ ordered removal.
1
The record reflects various spellings of the petitioner's
first name. For simplicity's sake, we use the spelling employed in
the petitioner's brief.
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The petitioner did not perfect an appeal of this removal
order to the BIA. That lapse did not signal the end of the matter,
however; a month after the appeal period had expired, the
petitioner asked the BIA to remand his case to the IJ. The BIA
denied the motion to remand on December 23, 2003.
On March 22, 2004, the petitioner lodged another motion
with the BIA. This motion, denominated as a motion to reopen the
removal proceeding, hinged on a claim that he had remarried. The
BIA denied the motion on May 10, 2004, concluding that the
petitioner was not eligible for adjustment of status as he was not
legally admitted into the United States and that, in any event, he
had failed to make a showing sufficient to warrant reopening. See
id. § 1255(a); 8 C.F.R. § 1003.2. The petitioner accepted this
rebuff without seeking judicial review.
On October 17, 2005, the petitioner filed yet another
motion to reopen. In this filing, he alleged that, after his
arrival in the United States, he had apostatized his former Sunni
Islam faith and become an adherent of the Shia Islam faith. He
offered no dates or details in support of these bare assertions,
nor did he furnish any evidence corroborating his claimed
conversion. He further averred — again, without corroboration —
that his Sunni Muslim family members in Pakistan had not only
disowned him but also had threatened him with harm. He said that
he feared what they might do upon his return. Finally, he claimed
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that sectarian violence against Shiite Muslims had escalated in
Pakistan, and that this change in country conditions substantiated
his fear of persecution incident to forced repatriation. To
support that claim, the petitioner proffered a series of internet
articles describing contemporaneous country conditions in Pakistan.
On March 27, 2006, the BIA denied the petitioner's motion
to reopen. It noted that the motion was successive as well as
untimely and, thus, subject to dismissal on numerical and temporal
grounds. Weighing the propriety of a possible exception to these
procedural bars, the BIA determined that the motion (i) rested
"upon mere speculation about what may happen to [the petitioner]
upon his return" and (ii) failed to make out a prima facie case of
eligibility for either asylum or withholding of removal.
Accordingly, the BIA concluded that the motion did not fall within
the scope of any recognized exception to the numerical and temporal
limitations and, so, denied the petitioner's motion. This timely
petition for judicial review followed.
We preface our inquiry into the correctness of the BIA's
ruling with a précis of the applicable legal standards. Motions to
reopen removal proceedings are disfavored as contrary to "the
compelling public interests in finality and the expeditious
processing of proceedings." Roberts v. Gonzales, 422 F.3d 33, 35
(1st Cir. 2005) (quoting Falae v. Gonzales, 411 F.3d 11, 14-15 (1st
Cir. 2005)). As a result, the BIA enjoys considerable latitude in
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deciding whether to grant or deny such a motion. See INS v.
Doherty, 502 U.S. 314, 323 (1992). Judicial review of such
decisions is solely for abuse of discretion. See Roberts, 422 F.3d
at 35; Falae, 411 F.3d at 14. This means, in effect, that such a
decision will stand unless the complaining party can show that the
BIA committed an error of law or exercised its judgment in an
arbitrary, capricious, or irrational way. See Maryam v. Gonzales,
421 F.3d 60, 62 (1st Cir. 2005); Wang v. Ashcroft, 367 F.3d 25, 27
(1st Cir. 2004).
A maze of regulations affects the conduct of removal
proceedings. Under this regulatory scheme, an alien ordinarily may
file only a single motion to reopen a removal proceeding — and that
motion must be submitted within ninety days of the rendition of the
final administrative decision. See 8 C.F.R. § 1003.2(c)(2). This
means that motions to reopen are limited both numerically (one to
a customer) and temporally (a ninety-day window).
The petitioner concedes that the motion sub judice fails
to meet these requirements. Numerically, this is his second such
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motion;2 temporally, the motion was filed more than ninety days
after the final administrative decision ordering his removal.
These numerical and temporal limitations are not
absolute. Of particular pertinence here, a showing of exceptional
circumstances may operate to relax them. See id. § 1003.2(c)(3);
see also Roberts, 422 F.3d at 36. Under this rubric, the agency
may waive numerical and temporal bars to reopening if an alien
makes a convincing demonstration of changed conditions in his
homeland. Those changes, however, must be material to the
underlying substantive relief that the alien is seeking (here,
asylum or withholding of removal) and the evidence tendered in
support thereof must have been unavailable during the prior
proceedings. See 8 C.F.R. § 1003.2(c)(3)(ii). Moreover, such a
showing requires more than a conclusory claim that the sky is
falling: the evidence proffered in support of the motion must, at
a bare minimum, establish a prima facie case sufficient to ground
a claim of eligibility for the underlying substantive relief. See
INS v. Abudu, 485 U.S. 94, 104 (1988); Maryam, 421 F.3d at 62.
2
Actually, this may well be the petitioner's third motion to
reopen. The government contends, with some force, that the
petitioner's initial motion to remand, regardless of its label, in
fact constituted a motion to reopen. In that case, the motion
under review here would be the petitioner's third motion to reopen.
Because it makes no difference to the outcome of this proceeding
whether the current motion is the petitioner's second or third
motion to reopen, we do not pursue this line of inquiry.
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Against this backdrop, we return to the case at hand.
The petitioner asseverates that the BIA failed to appreciate the
significance of, or even address, the proffered evidence of changed
country conditions. Building on this foundation, he argues that
this failure, which cemented into place the BIA's decision to deny
his motion to reopen as numerically and temporally barred,
constituted an abuse of discretion. The record, however, belies
the foundational premise on which this argument rests: it shows
beyond any peradventure of doubt that the BIA took cognizance of
the petitioner's proffer and adequately explained why the
conclusion that the petitioner urged should not carry the day.
The BIA's memorandum of decision tells the tale. In that
rescript, the BIA explicitly acknowledged the petitioner's claim
that his case fit within the "changed circumstances" exception to
the numerical and temporal limitations. It then limned the
relevant legal standard, considered the petitioner's allegations
(including those pertaining to conversion and evolving country
conditions), and found those thinly supported allegations
insufficient to bring the exception into play. In the process, the
BIA observed that the "country conditions information" did not
specifically refer to the petitioner and that in several critical
aspects the motion was "based upon mere speculation about what may
happen to the [petitioner] upon his return" to Pakistan. Thus,
notwithstanding the contents of his proffer, the petitioner had
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failed to meet the requirements for an exception to the numerical
and temporal limitations.
We discern no flaw in the BIA's analysis. An agency is
not required to dissect in minute detail every contention that a
complaining party advances. It is enough if the agency fairly
considers the points raised by the complainant and articulates its
decision in terms adequate to allow a reviewing court to conclude
that the agency has thought about the evidence and the issues and
reached a reasoned conclusion. See Bowman Transp., Inc. v. Ark.-
Best Freight Sys., Inc., 419 U.S. 281, 285-286 (1974); see also
Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000) (explaining that
the decision must be sufficient to show that the BIA did not
"merely react[]"). The BIA's decision in this case satisfies that
standard.
Alternatively, the petitioner argues that, even if the
BIA did not ignore his proffer, it nonetheless abused its
discretion in denying the motion to reopen. Even without regard to
numerical and temporal limitations, an alien making such an
argument must overcome the obstacle imposed by a "highly
deferential" standard of review. Roberts, 422 F.3d at 35. In this
instance, the petitioner cannot surmount that obstacle. As we
explain below, the BIA's determination that he failed to make out
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a prima facie case of eligibility for appropriate substantive
relief seems unimpugnable.3
We start with the petitioner's claim that he had made out
a case of eligibility for asylum. To qualify for asylum, an
applicant must demonstrate a well-founded fear of persecution on
account of one of five enumerated grounds, namely, "race, religion,
nationality, membership in a particular social group, or political
opinion." 8 C.F.R. § 208.13(b)(2)(A). Neither the statute nor the
regulations defines "persecution" for purposes of asylum, and this
court has opted to decide the question of what constitutes
persecution case by case. See, e.g., Orelien v. Gonzales, 467 F.3d
67, 71 (1st Cir. 2006).
There are, however, some guiding principles. One of
these guidelines is that persecution "always implies some
connection to governmental action or inaction, related to a
protected ground . . . ." Id. at 72. When an asylum claim focuses
on non-governmental conduct, its fate depends on some showing
either that the alleged persecutors are aligned with the government
or that the government is unwilling or unable to control them. See
id.
3
We note in passing that, under the applicable regulations,
the BIA would have had some leeway to deny the motion to reopen
even if the petitioner had made out a prima facie case of
eligibility for substantive relief. See 8 C.F.R. § 1003.2(a).
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In the case at hand, the petitioner experienced no
persecution while in Pakistan. His professed fear of future
persecution arises out of the possibility of victimization as a
result of his religious conversion. The motion papers, however,
fail to intimate the slightest connection between the forecasted
persecution and any governmental action or inaction. Indeed, the
petitioner's principal claim is that he fears the wrath of his
immediate family because of his apostasy. There is nothing of any
substance to connect those possible depredations to the government.
By the same token, there is nothing that might suffice to ground a
finding — let alone to compel a finding — that the government is
unable or unwilling to combat violence based on religious
preference.
Nor do the internet articles regarding sporadic Sunni-
Shiite violence establish a prima facie case of asylum eligibility.
Even assuming that one accepts the petitioner's claim of conversion
— and that claim is wholly uncorroborated — the fourteen articles
that he has submitted refer generally to militant activity and
episodic violence within Pakistan. This violence is not widespread
but, rather, largely confined to the city of Karachi and Punjab
province. Tellingly, the articles, taken as a group, make it
pellucid that most of Pakistan's Sunnis and Shiites reside
peacefully together. By definition, persecution has a systematic
aspect; it requires more than a showing that scattered incidents of
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violence or harassment are in prospect. See Palma-Mazariegos v.
Gonzales, 428 F.3d 30, 37 (1st Cir. 2005). To cinch matters, the
religiously inspired unpleasantness described in the fourteen
internet articles is, like the feared wrath of the petitioner's
family members, unconnected to the Pakistani government.
To say more would be supererogatory. On this exiguous
showing, it cannot plausibly be said that the BIA abused its
discretion when it concluded that the petitioner, in failing to
demonstrate a reasonable possibility of persecution should he be
returned to Pakistan, fell short of establishing a prima facie case
of eligibility for asylum.
The other strain of substantive relief sought by the
petitioner is withholding of removal. A claim for withholding of
removal "carries with it a more stringent burden of proof than does
a counterpart effort to obtain asylum." Orelien, 467 F.3d at 73
(citing Ang v. Gonzales, 421 F.3d 50, 58 (1st Cir. 2005)).
Presumably for this reason, the petitioner makes no assertion that,
if he failed to make out a prima facie case of eligibility for
asylum, he somehow can be found to have made out a prima facie case
of eligibility for withholding of removal.
We need go no further. The short of it is that the
petitioner's motion to reopen was numerically and temporally
barred. The BIA sufficiently addressed, and supportably rejected,
the petitioner's argument that he qualified for an exception to
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these numerical and temporal limitations. Consequently, adhering
to those bars did not, in the circumstances of this case,
constitute an abuse of discretion.
The petition for review is denied.
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