Hassan v. Rosen ( 2021 )

18-2147
Hassan v. Rosen
BIA
A076 245 797
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 22nd day of January, two thousand twenty-one.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 RICHARD J. SULLIVAN,
11 Circuit Judges.
12 _____________________________________
13
14 NASRIN HASSAN,
15 Petitioner,
16
17 v. 18-2147
18 NAC
19 JEFFREY A. ROSEN, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.*
22
23 _____________________________________
24
25 FOR PETITIONER: Lawrence Spivak, Esq., Jamaica,
26 N.Y.
2728 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
29 Attorney General; Cindy S. Ferrier,
* Pursuant to Fed R. App. P. 43(c)(2), Jeffrey A. Rosen is automatically
substituted for former Attorney General William P. Barr.
1 Assistant Director; Micah Engler,
2 Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Nasrin Hassan, a native and citizen of
12 Bangladesh, seeks review of a July 3, 2018, decision of the
13 BIA denying her motion to reopen. In re Hassan, No. A 076
14 245 797 (B.I.A. July 3, 2018). We assume the parties’
15 familiarity with the underlying facts and procedural history.
16 We review the denial of a motion to reopen for abuse of
17 discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
18 2006). When the agency considers relevant evidence of
19 country conditions in evaluating a motion to reopen, we review
20 its factual findings under the substantial evidence standard.
21 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.
22 2008).
2
1 An alien seeking to reopen proceedings may file only one
2 motion to reopen no later than 90 days after the final
3 administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i);
4 8 C.F.R. § 1003.2(c)(2). However, the time and number limits
5 do not apply if the motion is filed in order to apply for
6 asylum “based on changed country conditions arising in the
7 country of nationality . . . if such evidence is material and
8 was not available and would not have been discovered or
9 presented at the previous proceeding.” 8 U.S.C.
10 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
11 Motions to reopen are disfavored, and a movant bears the
12 burden of demonstrating that the “new evidence offered would
13 likely change the result in the case.” In re S-Y-G-, 24 I.
14 & N. Dec. 247, 251–52 (B.I.A. 2007) (quoting In re Coelho, 20
15 I. & N. Dec. 464, 473 (B.I.A. 1992)).
16 Hassan’s January 2018 motion was number-barred because
17 it was her second motion, and it was untimely because she
18 filed the motion over eight years after the BIA’s September
19 2009 decision affirming her final order of removal. And
20 contrary to Hassan’s argument that these bars should not apply
21 to her because she was a derivative beneficiary of her
3
1 husband’s application, her status as a derivative beneficiary
2 does not implicate any of the exceptions to the time and
3 number limitations. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8
4 C.F.R. § 1003.2(c)(3) (listing exceptions).
5 To the extent that Hassan based her motion to reopen on
6 abuse that she suffered at the hands of her in-laws, the BIA
7 did not err in concluding that any such abuse predated
8 Hassan’s arrival in the United States and thus did not reflect
9 a change in conditions for reopening. Hassan could have
10 raised this claim in the proceedings before the immigration
11 judge which concluded in 2007. See 8 U.S.C.
12 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
13 Next, assuming arguendo that Hassan’s allegations
14 regarding her brother could otherwise support a motion to
15 reopen, the BIA did not abuse its discretion in concluding
16 that this evidence “would not likely change the result in the
17 case.” In re Hassan, No. A 076 245 797, at 2. Hassan stated
18 for the first time in connection with the present motion her
19 fear of abuse from her brother and local authorities
20 purportedly under his sway. However, because she did not
21 present “objective” evidence supporting this claim, and
4
1 because she failed to raise it in any prior proceeding,
2 including her 2017 motion to reopen, id., the BIA did not
3 abuse its discretion in concluding that the new evidence would
4 not likely change the result on the merits. See In re Coelho,
5 20 I. & N. Dec. at 473.
6 For the foregoing reasons, the petition for review is
7 DENIED and the BIA’s decision is AFFIRMED. All pending
8 motions and applications are DENIED and stays VACATED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
5