Choudhury v. Barr ( 2019 )

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Choudhury v. Barr
BIA
Van Wyke, IJ
A070 651 046
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of November, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
RAYMOND J. LOHIER, JR.,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
OIES AHMED CHOUDHURY,
Petitioner,
v. 16-8
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Oies Ahmed Choudhury, pro se, New
York, NY.
FOR RESPONDENT: Joseph A. Hunt, Assistant
Attorney General; Melissa Neiman-
Kelting, Assistant Director;
Allison Frayer, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Oies Ahmed Choudhury, a citizen of Bangladesh,
seeks review of a December 7, 2015, decision of the BIA
affirming an August 11, 2014, decision of an Immigration Judge
(“IJ”) denying his motion to reopen. In re Choudhury, No. A
070 651 046 (B.I.A. Dec. 7, 2015), aff’g No. A 070 651 046
(Immig. Ct. N.Y. City Aug. 11, 2014). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). We review the denial of a motion
to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d
515, 517 (2d Cir. 2006). When the agency considers relevant
evidence of country conditions in evaluating a motion to
reopen, we review its factual findings under the substantial
evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 169 (2d Cir. 2008).
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An alien seeking to reopen his or her removal proceedings
may file one motion to reopen within 90 days of the final
administrative order in those proceedings. 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.23(b)(1). It is
undisputed that Choudhury’s 2014 motion was untimely because
he accepted an order of voluntary departure in 1998. The
time limitation for filing a motion to reopen does not apply,
however, if the basis of the motion is to apply for asylum
“based on changed country conditions arising in the country
of nationality or the country to which removal has been
ordered, if such evidence is material and was not available
and would not have been discovered or presented at the
previous proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
also 8 C.F.R. § 1003.23(b)(4)(i). Here, the agency’s
determination that Choudhury failed to establish a material
change in country conditions, which was based on its
consideration of the relevant evidence in the record, was
supported by substantial evidence. See Jian Hui Shao, 546
F.3d at 169. Choudhury’s prior asylum claim was premised on
evidence that the Bangladesh Nationalist Party (“BNP”) had
targeted him because of his membership in the Jatiya Party.
In support of his motion to reopen, meanwhile, Choudhury
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attempted to demonstrate changed conditions by alleging that
a member of a third political party, the Awami League, had
been elected Prime Minister in 2008 and that in 2013, police
arrested political opponents of the Awami League. The IJ and
BIA reasonably determined from the record, including the
State Department’s 2013 Country Report for Bangladesh, that
those arrested were members of the BNP, not the Jatiya party.
Indeed, the State Department report identified the BNP as the
opposition to the Awami League and noted the arrest of 150
BNP members. The report did not even mention the Jatiya
Party, nor did Choudhury explain how the election and the
arrests affected him as a member of the Jatiya party.
Accordingly, the agency reasonably concluded that the
evidence was insufficient to demonstrate a material change in
country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(i)
(requiring evidence of changed circumstances to be “material”
to asylum eligibility).1
Choudhury argues for the first time in this Court that
his counsel was ineffective in his original removal
1 To the extent that Choudhury challenges the agency’s
decision not to grant reopening sua sponte under 8 C.F.R.
§ 1003.2(a), we lack jurisdiction to review that “entirely
discretionary” decision. Ali v. Gonzales, 448 F.3d 515, 518
(2d Cir. 2006).
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proceedings, that he was politically active in the United
States, and that he received threatening notes while in the
United States. But we will not find an abuse of discretion
based on arguments Choudhury did not exhaust before the IJ or
the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
104, 122–23 (2d Cir. 2007).2
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Choudhury’s pending
motion for a stay of removal is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
2 Our conclusion that Choudhury failed to exhaust his claim
of ineffective assistance of counsel extends only to his
counsel’s performance in the original removal proceedings.
Choudhury, proceeding pro se in this Court, does not challenge
his counsel’s performance in connection with the motion to
reopen below, and appropriately so: the better vehicle to
raise any such claim would be a second motion to reopen. See
Zhao v. INS, 452 F.3d 154, 159 (2d Cir. 2006).
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