Butta v. Holder , 538 F. App'x 41 ( 2013 )

11-5353
Butta v. Holder
BIA
A076 197 761
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 18th day of September, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RAYMOND J. LOHIER, JR.,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 MOHAMMAD RASHID BUTTA,
14 Petitioner,
15
16 v. 11-5353
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Melinda M. Basaran, Paterson, NJ.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Ernesto H. Molina,
27 Jr., Assistant Director; Nancy N.
28 Safavi, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Petitioner Mohammad Rashid Butta, a native and citizen
6 of Pakistan, seeks review of a November 29, 2011, order of
7 the BIA, denying his motion to reopen his removal
8 proceedings. In re Mohammad Rashid Butta, No. A076 197 761
9 (B.I.A. Nov. 29, 2011). We assume the parties’ familiarity
10 with the underlying facts and procedural history in this
11 case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
14 (2d Cir. 2006) (per curiam). An alien seeking to reopen
15 proceedings is required to file a motion to reopen no later
16 than 90 days after the date on which the final
17 administrative decision was rendered. See 8 U.S.C.
18 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
19 dispute that Butta’s motion to reopen, filed in 2011, was
20 untimely, because the BIA issued a final order of removal in
21 Butta’s case in 2005. Butta contends, however, that he has
22 established changed circumstances excusing his untimely
23 motion to reopen, namely, materially worsened conditions in
2
1 Pakistan for moderate Muslims who reject extremist ideology.
2 See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
3 § 1003.2(c)(3)(ii).
4 The BIA did not err in declining to credit Butta’s
5 generalized, uncorroborated statements in his affidavit that
6 he is a moderate Muslim in light of the agency’s underlying
7 adverse credibility determination. As Butta notes, we have
8 held that a prior adverse credibility determination does not
9 necessarily preclude a finding of a well-founded fear of
10 persecution when the new claim rests on a factual predicate
11 “independent of the testimony the [immigration judge] found
12 not to be credible.” Paul v. Gonzales, 444 F.3d 148, 154
13 (2d Cir. 2006). However, this does not mean that the prior
14 adverse credibility determination is never relevant to the
15 agency’s assessment of evidence supporting a new asylum
16 claim, as we have also held that the agency may consider
17 prior false documents or testimony in deciding whether to
18 credit “‘uncorroborated or unauthenticated evidence.’” Qin
19 Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007)
20 (quoting Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007)).
21 Here, the BIA appropriately considered the underlying
22 adverse credibility determination in declining to rely on
3
1 Butta’s brief, conclusory statement in his affidavit that he
2 was a moderate Muslim who would be persecuted on account of
3 his religion, where he submitted no other corroboration of
4 his religious beliefs. Because evidence of Butta’s
5 religious beliefs was necessary to assess whether he
6 established a material change in conditions that affected
7 his eligibility for asylum, the BIA did not err in finding
8 that Butta did not establish changed circumstances
9 warranting reopening of his proceedings. See 8 U.S.C.
10 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).
11 Butta also argues that the BIA erred in finding, in the
12 alternative, that Butta’s country conditions evidence did
13 not establish changed conditions in Pakistan for a person in
14 his circumstances. While the BIA’s analysis of the country
15 conditions evidence does not clearly address whether Butta
16 established materially worsened country conditions for
17 moderate Muslims, see Poradisova v. Gonzales, 420 F.3d 70,
18 77, 81-82 (2d Cir. 2005), we decline to remand on this
19 basis, as the BIA’s finding that Butta’s affidavit was not
20 reliable, and thus that he did not adequately establish his
21 religious beliefs, was dispositive of his motion, and is a
22 sufficient basis for the agency’s decision. See Cao He Lin
4
1 v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005)
2 (despite error, remand is not required where the agency
3 adopts an “alternative and sufficient basis” for its
4 decision).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2) and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
5