Alam v. Barr ( 2019 )

18-1688
Alam v. Barr
BIA
A073 543 677
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 TO 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 17th day of September, two thousand nineteen.
5
6 PRESENT:
7 PETER W. HALL,
8 JOSEPH F. BIANCO,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 NURUL ALAM,
14 Petitioner,
15
16 v. 18-1688
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Nurul Alam, pro se, Bronx, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant
26 Attorney General; Janice K.
27 Redfern, Senior Litigation
28 Counsel; Gerald M. Alexander,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
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 Nurul Alam, a native and citizen of
6 Bangladesh, seeks review of a May 8, 2018, decision of the
7 BIA denying his third motion to reopen. In re Nurul Alam,
8 No. A 073 543 677 (B.I.A. May 8, 2018). We assume the
9 parties’ familiarity with the underlying facts and procedural
10 history in this case.
11 In lieu of filing a brief, the Government moves for
12 summary denial of Alam’s petition for review. Because Alam
13 has filed his merits brief, however, we treat the Government’s
14 motion as a response to that brief and deny the petition.
15 Alam argues that the BIA erred in not reviewing the legal
16 and factual issues raised in the immigration judge’s adverse
17 credibility determination. But Alam cannot challenge the
18 agency’s underlying adverse credibility determination at this
19 stage because his petition is timely only as to the BIA’s
20 denial of his motion to reopen. See Kaur v. BIA, 413 F.3d
21 232, 233 (2d Cir. 2005) (noting that we are precluded from
2
1 reviewing underlying removal order on petition for review of
2 denial of motion to reopen).
3 To the extent that Alam challenges the denial of
4 reopening, his brief reiterates that changed country and
5 personal conditions both excuse his untimely filing and
6 warrant a grant of asylum. We review the denial of a motion
7 to reopen for abuse of discretion. Id. It is undisputed
8 that Alam’s 2017 motion to reopen was untimely and number
9 barred because it was filed more than 14 years after the BIA’s
10 original decision affirming the adverse credibility
11 determination and it was his third motion to reopen with the
12 BIA. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i) (providing that
13 movant may file one motion to reopen and setting 90-day
14 deadline for motion to reopen); 8 C.F.R. § 1003.2(c)(2)
15 (same). However, the time and number limitations do not
16 apply if reopening is sought to apply for asylum “based on
17 changed country conditions arising in the country of
18 nationality or the country to which removal has been ordered,
19 if such evidence is material and was not available and would
20 not have been discovered or presented at the previous
3
1 proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
2 8 C.F.R. § 1003.2(c)(3)(ii).
3 The BIA did not abuse its discretion in declining to
4 reopen on the ground that the alleged changed conditions were
5 not material. See 8 U.S.C. § 1229a(c)(7)(C)(ii). The record
6 reflects that the BIA acknowledged the alleged conditions—
7 that political unrest endangered political leaders in
8 Bangladesh—but reasonably concluded that those allegations
9 did not meet the high burden for reopening given the prior
10 determination that Alam’s claim of membership in a political
11 opposition party was not credible. See Qin Weng Zheng v.
12 Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) (reasoning that
13 BIA may rely on underlying adverse credibility determination
14 to deny motion to reopen). Alam made no effort to counter
15 the adverse credibility determination as he did not submit
16 any documentary evidence regarding his political activity,
17 his purported criminal charges, or any of the alleged
18 incidents of past persecution.
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, the Government’s
21 motion for summary denial and Alam’s motion for a stay of
4
1 removal are DENIED as moot. Any pending request for oral
2 argument in this petition is DENIED in accordance with Federal
3 Rule of Appellate Procedure 34(a)(2), and Second Circuit
4 Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
5