Sultan v. Garland ( 2023 )

20-2827
Sultan v. Garland
BIA
Nelson, IJ
A095 952 529
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 30th day of May, two thousand twenty-three.
5
6 PRESENT:
7 DENNY CHIN,
8 RAYMOND J. LOHIER, JR.,
9 ALISON J. NATHAN,
10 Circuit Judges.
11 _____________________________________
12
13 ALI ALI SULTAN, AKA RAHAMAT ALI
14 SULTAN,
15 Petitioner,
16
17 v. 20-2827
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Pankaj Malik, Warshaw Burstein,
25 LLP, New York, NY.
26
27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
28 Attorney General; Anthony P.
1 Nicastro, Assistant Director;
2 Linda Y. Cheng, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of
5 Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DISMISSED in part and DENIED in part.
10 Petitioner Ali Ali Sultan, a native and citizen of
11 Trinidad and Tobago, seeks review of a July 28, 2020 decision
12 of the BIA affirming a June 7, 2018 decision of an Immigration
13 Judge (“IJ”), which denied his application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”), as well as an application for
16 cancellation of removal. In re Ali Ali Sultan, No. A 095 952
17 529 (B.I.A. July 28, 2020), aff’g No. A 095 952 529 (Immig.
18 Ct. N.Y.C. June 7, 2018). We assume the parties’ familiarity
19 with the underlying facts and procedural history.
20 We have considered both the IJ’s and BIA’s decisions “for
21 the sake of completeness.” Wangchuck v. Dep’t of Homeland
22 Sec., 448 F.3d 524, 528 (2d Cir. 2006). Sultan primarily
23 challenges the agency’s denial of his motion for a
24 continuance. We find no abuse of discretion in that ruling
2
1 and conclude that Sultan has not otherwise sufficiently
2 exhausted or argued his claims for relief from removal.
3 I. Motion to Continue
4 “We review the agency’s denial of a continuance for abuse
5 of discretion.” Flores v. Holder, 779 F.3d 159, 164 (2d Cir.
6 2015). The agency abuses its discretion “if (1) [its]
7 decision rests on an error of law (such as application of the
8 wrong legal principle) or a clearly erroneous factual finding
9 or (2) [its] decision—though not necessarily the product of
10 a legal error or a clearly erroneous factual finding—cannot
11 be located within the range of permissible decisions.”
12 Morgan v. Gonzales, 445 F.3d 549, 551–52 (2d Cir. 2006)
13 (quotation marks omitted). “IJs have . . . broad discretion
14 with respect to calendaring matters.” Sanusi v. Gonzales,
15 445 F.3d 193, 199 (2d Cir. 2006) (finding no abuse of
16 discretion where an IJ denied a third motion to continue
17 “after months of delay”). While an IJ “may grant a motion
18 for continuance for good cause shown,” 8 C.F.R. § 1003.29,
19 the moving party has the burden of establishing good cause,
20 see Matter of L–A–B–R–, 27 I. & N. Dec. 405, 413 (A.G. 2018).
21 The IJ did not abuse her discretion in concluding that
3
1 Sultan did not show good cause for a continuance. A motion
2 for a continuance based on lack of preparation must be
3 supported by “a reasonable showing that the lack of
4 preparation occurred despite a good faith effort to be ready
5 to proceed.” Matter of Sibrun, 18 I. & N. Dec. 354, 356
6 (B.I.A. 1983). Sultan offered no evidence to establish the
7 circumstances preventing him from being prepared for the
8 hearing or any good faith effort to be ready for the hearing,
9 beyond counsel’s assertions when arguing for the continuance.
10 Sultan also argues that the denial of the continuance
11 deprived him of due process. To succeed on a due process
12 claim, a petitioner “must show that []he was denied a full
13 and fair opportunity to present h[is] claims or . . .
14 otherwise deprived . . . of fundamental fairness,” Burger v.
15 Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (quotation marks
16 and citations omitted), and “some cognizable prejudice fairly
17 attributable to the challenged process,” Garcia-Villeda v.
18 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (quotation marks
19 and citations omitted). Sultan made no such showing. He had
20 opportunities to present evidence and testify, and he has not
21 established how witness testimony or the appearance of a
4
1 different attorney would have changed the outcome. For
2 example, he did not provide objective evidence that Muslims
3 or ethnic Indians in Trinidad and Tobago are targeted for
4 persecution or that he would be singled out for torture for
5 any reason. See Garcia-Villeda, 531 F.3d at 149 (denying a
6 due process claim where the “[p]etitioner fail[ed] to
7 demonstrate how the alleged shortcomings . . . prejudiced the
8 outcome”).
9 II. Applications for Relief from Removal
10 We require petitioners to exhaust the specific forms of
11 relief they request and sufficiently argue the issues and
12 challenge the agency’s denial of relief in their petitions
13 for review. See Foster v. INS, 376 F.3d 75, 78 (2d Cir.
14 2004); Karaj v. Gonzales, 462 F.3d 113, 119–20 (2d Cir. 2006).
15 Sultan has failed to exhaust and has not sufficiently
16 challenged the agency’s denial of relief from removal. As
17 the BIA pointed out, Sultan did not challenge the denial of
18 cancellation of removal or the denial of asylum as time barred
19 on appeal to the BIA. Accordingly, we lack jurisdiction to
20 review those forms of relief. See Karaj, 462 F.3d at 119–
21 20. Nor did he identify factual or legal errors in the denial
5
1 of withholding of removal and CAT relief on appeal to the
2 BIA. See Foster, 376 F.3d at 78. Moreover, Sultan’s briefs
3 in support of his petition do not identify specific errors in
4 the agency’s decisions. See Yueqing Zhang v. Gonzales, 426
5 F.3d 540, 545 n.7 (2d Cir. 2005) (deeming claim abandoned
6 where not sufficiently argued). We therefore dismiss the
7 petition insofar as Sultan challenges the agency’s denial of
8 relief from removal, which he failed to exhaust.
9 Even if we were to reach the merits of his arguments
10 relating to withholding of removal and CAT relief, we do not
11 identify any error in the agency’s decision. Sultan alleged
12 that he was fired from his job, but under the circumstances
13 here, that harm alone does not amount to past persecution.
14 See Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)
15 (“[P]ersecution is an extreme concept that does not include
16 every sort of treatment our society regards as offensive.”
17 (quotation marks omitted)); Ivanishvili v. U.S. Dep’t of
18 Just., 433 F.3d 332, 341 (2d Cir. 2006) (distinguishing
19 between persecution and harassment). Moreover, the 2017
20 State Department report, which is the only country conditions
21 evidence in the record, does not support Sultan’s fear of
6
1 future persecution or torture because it does not confirm his
2 allegation that Indian-Muslims are targeted for persecution
3 or singled out for rape and murder, as Sultan claims. See 8
4 C.F.R. §§ 1208.16(c)(2) (placing burden on CAT applicant to
5 show torture is “more likely than not”), 1208.18(a)(1)–(2)
6 (defining torture); Wei Sun v. Sessions, 883 F.3d 23, 27–28
7 (2d Cir. 2018) (“Eligibility for withholding of removal
8 requires a clear probability of persecution, i.e., it is more
9 likely than not that the alien would be subject to
10 persecution.” (ellipsis and internal quotation marks
11 omitted)).
12 For the foregoing reasons, the petition for review is
13 DISMISSED in part and DENIED in part. All pending motions
14 and applications are DENIED and stays VACATED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
7