Saydur v. Holder , 597 F. App'x 14 ( 2015 )

13-2610
Saydur v. Holder
BIA
Sichel, IJ
A070 895 062
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of February, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 MD Saydur, AKA Mohammed Saydur,
14 Petitioner,
15
16 v. 13-2610
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas Edward Moseley, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; John W. Blakeley, Senior
27 Litigation Counsel; Jesse Lloyd
28 Busen, Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 MD Saydur, a native and citizen of Bangladesh, seeks
10 review of the June 14, 2013 decision of the BIA denying his
11 motion to reopen. In re MD Saydur a.k.a. Mohammed Saydur,
12 No. A070 895 062 (B.I.A. June 14, 2013). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 We review the denial of a motion to reopen for an abuse
16 of discretion, “mindful that motions to reopen ‘are
17 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
18 2006) (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)).
19 An applicant may file a motion to reopen within 90 days of
20 the date on which a final administrative decision was
21 rendered in the proceeding sought to be reopened. See 8
22 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
23 However, the 90-day limitation period does not apply to a
24 motion to reopen that is “based on changed circumstances
2
1 arising in the country of nationality or in the country to
2 which deportation has been ordered, if such evidence is
3 material and was not available and could not have been
4 discovered or presented at the previous hearing.” 8 C.F.R.
5 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
6 “A motion to reopen proceedings for the purpose of
7 submitting an application for relief must be accompanied by
8 the appropriate application for relief and all supporting
9 documentation.” 8 C.F.R. § 1003.2(c)(1).
10 Here, it is undisputed that Saydur's motion to reopen
11 was untimely because it was filed in April 2013, more than
12 two years after the order of removal became final in
13 November 2010. The BIA did not abuse its discretion in
14 concluding that Saydur's failure to include an asylum
15 application with his motion to reopen precluded it from
16 considering his evidence of changed country conditions, as
17 “[a] motion to reopen proceedings for the purpose of
18 submitting an application for relief must be accompanied by
19 the appropriate application for relief and all supporting
20 documentation.” 8 C.F.R. § 1003.2(c)(1); see also
21 Joaquin-Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir. 2006)
22 (An agency's interpretations of its own regulations are
3
1 accorded substantial deference). The BIA also appropriately
2 concluded that Saydur did not articulate a specific claim of
3 persecution, as the declaration by Parikh and internet
4 articles he submitted with his motion broadly address the
5 treatment of Christians and religious minorities in
6 Bangladesh, but do not establish whether a Muslim individual
7 with a Christian wife and child would be subject to harm.
8 Finally, Saydur's argument that the Court should adopt a
9 bright-line rule that “the denial of an unopposed,
10 non-frivolous motion to reopen” is presumptively an abuse of
11 discretion fails because the burden is on the movant to
12 establish his entitlement to reopening and there is no
13 statutory or regulatory requirement that the Government file
14 an opposition. See INA § 240(c)(7); 8 U.S.C. § 1229a(c)(7);
15 8 C.F.R. § 1003.2(g)(3).
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot. Any pending request for
21
22
4
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4
5
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
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5