Atm Magfoor Rahman Sarkar v. Merrick Garland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ATM MAGFOOR RAHMAN SARKAR; No. 17-72212
HASNA HENA RAHMAN; SAIQA
RAHMAN; SAHRIAR RAHMAN, Agency Nos.
Petitioners, A070-952-103
A070-952-104
v. A070-952-105
A070-952-107
MERRICK B. GARLAND, Attorney
General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 10, 2022
Pasadena, California
Filed July 1, 2022
Before: Sandra S. Ikuta, Kenneth K. Lee, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Forrest
2 SARKAR V. GARLAND
SUMMARY *
Immigration
The panel denied the parties’ motion for judicial
administrative closure of the case and denied Atm Magfoor
Rahman Sarkar, his wife, and their children’s petition for
review of the Board of Immigration Appeals’ denial of their
third motion to reopen.
Although this case had been pending for nearly five
years, shortly before oral argument both Sarkar and the
Government moved to administratively close the case
because the Government had deemed Sarkar a low
enforcement priority. The panel denied the parties’ motion,
concluding that the panel’s inherent authority to manage its
docket, including by granting administrative closures, would
not be served by keeping this case on the panel’s docket
indefinitely. The panel wrote that the Government has
numerous means to avoid enforcement against Sarkar if that
is what it wants, and it declined to add judicial administrative
closure to the list of the Government’s tools.
Sarkar did not dispute that his third motion to reopen was
untimely and numerically barred. Instead, Sarkar argued
that new evidence showing the growing influence of Jihadist
extremists in Bangladesh increased his risk of being targeted
on account of his political beliefs and membership in the
Jatiya party. The panel concluded that the BIA did not abuse
its discretion in concluding that Sarkar’s new evidence was
not material to Sarkar and was insufficient to demonstrate a
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SARKAR V. GARLAND 3
prima facie claim for asylum, withholding of removal, and
Convention Against Torture relief.
The panel explained that none of the evidence that Sarkar
produced related to membership in the Jatiya party or
members of that party who speak up against Islamic
extremism. Although Sarkar contended that the changes in
marriage laws, the removal of certain poems and stories from
educational textbooks, and a terrorist attack that killed
mostly foreigners showed a change in Bangladesh’s
acceptance of radical Islam, he failed to show that those
conditions more severely impacted him and his family than
the population at large.
The panel agreed with the BIA that Sarkar’s new
evidence did not demonstrate an individualized risk of
persecution or that he would be subject to a pattern or
practice of persecution based on his political affiliation. The
panel explained that Sarkar had not submitted evidence of
direct and specific facts establishing that he had a reasonable
fear of persecution, and his affidavit and articles were too
speculative to be credited as a basis for his fear of future
persecution. The panel concluded that Sarkar’s evidence
also failed to establish a nexus between a reasonable fear of
future persecution and his proposed protected grounds.
Rather, the evidence pointed to generalized crime and
societal shifts that did not target Sarkar or those in his
proposed social groups.
The panel agreed with the BIA that Sarkar’s evidence
also did not establish that he is now more likely than not to
face torture if returned to Bangladesh.
4 SARKAR V. GARLAND
COUNSEL
Ruben N. Sarkisian (argued), Glendale, California, for
Petitioners.
Raya Jarawan (argued) and Colette J. Winston, Trial
Attorneys; Jeffery R. Leist, Senior Litigation Counsel;
Anthony C. Payne, Assistant Director; Brian M. Boynton,
Acting Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
FORREST, Circuit Judge:
Atm Magfoor Rahman Sarkar, his wife, and their two
children petition for review of the Board of Immigration
Appeals’s (BIA) order denying their third motion to reopen
removal proceedings. 1 Although this case has been pending
for nearly five years, shortly before oral argument both
Sarkar and the Government moved to administratively close
this case because the Government has deemed Sarkar a low
enforcement priority. On the merits, it is undisputed that
Sarkar’s third motion to reopen is untimely and numerically
barred. Nonetheless, he argues that he is entitled to relief
because he has presented new and material country-
conditions evidence that establishes his prima facie
eligibility for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the parties’
1
Rahman Sarkar is the lead Petitioner; his wife and children seek
derivative relief. We refer only to the lead Petitioner for simplicity.
SARKAR V. GARLAND 5
motions for administrative closure as well as Sarkar’s
petition for review.
I. BACKGROUND
Sarkar, a native and citizen of Bangladesh, entered the
United States as a nonimmigrant visitor in 1991. After he
overstayed his visitor authorization, the Government issued
a Notice to Appear charging him as deportable under
8 U.S.C. § 1231(a)(1)(B). Sarkar admitted the allegations
against him and conceded removability and applied for
political asylum based on his participation in the Jatiya
Party.
After failing to appear and being ordered removed in
absentia in 1997, the immigration court granted a motion to
reopen and held a hearing on Sarkar’s claims. In 1998, an
Immigration Judge (IJ) denied his application for asylum and
ordered him removed to Bangladesh. The IJ found Sarkar’s
political persecution claims “unbelievable” and “at the
minimum exaggerated if not fabricated.” The IJ also noted
that the evidence contradicted Sarkar’s claims. The BIA
affirmed the IJ’s decision without opinion. Sarkar did not
appeal.
About six months later, Sarkar moved to reopen with the
BIA citing changed country conditions. The BIA denied the
motion because it was untimely and failed to show any
material change in the conditions in Bangladesh. We denied
Sarkar’s petition for review concluding that the BIA did not
abuse its discretion. See Sarkar v. Gonzales, 114 F. App’x
959 (9th Cir. 2004) (unpublished). Several years later,
Sarkar filed a second motion to reopen alleging ineffective
assistance of counsel. The BIA denied this second motion to
reopen, and we again denied Sarkar’s petition for review.
See Sarkar v. Holder, 444 F. App’x 207 (9th Cir. 2011)
6 SARKAR V. GARLAND
(unpublished). We held that the BIA did not abuse its
discretion because Sarkar presented insufficient evidence to
show that he was prejudiced by his former counsel’s actions.
Id. at 208.
In 2017, Sarkar filed a third motion to reopen, which is
the subject of this petition. In this motion, he argued that
changed circumstances in Bangladesh “put him directly at
risk of serious injury or death due to his opposition to Islamic
Extremists, as well as the Bangladeshi political parties
catering to the religious extremists.” Sarkar attached four
exhibits to his motion. The first exhibit is his own
declaration, in which he stated that “recent developments in
my country of Bangladesh have escalated the terrible
conditions to a new level, creating changed conditions which
place me in fear of returning to my country.”
Sarkar described his upbringing and the shift in
Bangladeshi politics, which “propelled” him to join the
Jatiya Party and go into hiding for several years. He
contended that “[w]hile Islamic extremists have always
existed in Bangladesh, . . . [he] ha[s] begun to witness from
afar, slow but steady capitulations by the government to
extremists.” He pointed to “seemingly small,” but
dangerous, government actions, such as “weakening our
landmark legislation against underage marriage.” While in
the United States, Sarkar declares that he has “become
known in the Bangladeshi expatriate community as a fierce
opponent of religious extremism,” evidenced by his “heated
arguments” at his local mosque. Thus, he concludes that he
remains safe only because he resides in the United States,
and he fears not having police protection if returned to
Bangladesh.
The second exhibit is an online article titled “Bangladesh
Weakens Longstanding Law Against Underage Marriage.”
SARKAR V. GARLAND 7
This article highlights the government’s change to a
“landmark law against underage marriage,” allowing “girls
under the age of 18 to marry in some circumstances.”
According to this article, the change was supported by
powerful Islamist organizations.
The third exhibit is also an online article acknowledging
“the removal of 17 poems and stories” in educational
textbooks. This removal—“barely noticeable to the general
public”—reportedly stemmed from demands made by a
group of Islamic religious scholars. The article contends that
the removal “goes far beyond textbooks” and reflects a
larger change in the government’s acquiescence to extreme
Islamic groups.
The final exhibit, titled “The Rise of Islamic Extremism
in Bangladesh,” points to violent attacks on those who
“rais[e] their voices against extremist ideology.” It
highlights an “attack on innocent civilians in an upscale
bakery” killing 22 people, “mainly foreigners.” This attack
allegedly stemmed from a shift in Bangladesh politics.
Although there are indications that newer attacks were
carried out by ISIS, the government “refuses to accept that
ISIS has infiltrated the country, instead blaming local
groups.”
The BIA denied Sarkar’s third motion to reopen as “both
untimely and number-barred.” The BIA held that the
evidence submitted did not establish an exception to the time
and numerical limitations for motions to reopen. It also noted
that the “limited background evidence of Islamist militant
violence in Bangladesh, which has been directed at various
groups of individuals, including foreigners, does not prima
facie demonstrate that [Sarkar’s family] face[s] an
individualized risk of persecution or that they would be
subject to a pattern or practice of persecution.” Rather, the
8 SARKAR V. GARLAND
BIA concluded that Sarkar and his family face the same risks
as the general population. As to the CAT claim, the BIA
found that Sarkar’s changed-circumstances evidence did not
demonstrate that it was more likely than not that he would
face torture with the consent or acquiescence of the
Bangladesh government.
Sarkar timely appealed and filed a motion for a stay of
removal. Soon after, he filed a supplemental motion to stay
removal, which the Government opposed. We granted
Sarkar’s supplemental motion for a stay pending this appeal.
The case was still pending almost four years later, and we
directed the parties “to file a request for appropriate relief or
notify the court that they wish to proceed to decision.” The
parties agreed to proceed, and the Government noted that
this “case does not merit alternative resolution.” But shortly
before oral argument, both the Government and Sarkar filed
unopposed motions to administratively close this case. The
Government gave as its reasons for indefinitely postponing
a decision on Sarkar’s petition that Sarkar and his family
“are not an immigration enforcement priority” and
“administrative closure would not adversely affect the
interests of the parties.” The Government further explained
at oral argument that it waited so long to pursue this relief
because the United States Immigration and Customs
Enforcement (ICE) had only recently made it aware that
Sarkar is not an enforcement priority. Sarkar relied on the
Government’s reasons in his motion for administrative
closure.
II. DISCUSSION
A. Administrative Closure
Federal courts have inherent power “to control the
disposition of the causes on [their] docket[s] with economy
SARKAR V. GARLAND 9
of time and effort for [themselves], for counsel, and for
litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).
Courts have exercised this authority in several ways, such as
staying proceedings and dismissing a case for failure to
prosecute. See Dietz v. Bouldin, 579 U.S. 40, 47 (2016)
(collecting cases). When considering a request to stay an
appeal, we have explained that “competing interests” must
be weighed. CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir.
1962). Those interests include: “the possible damage which
may result from the granting of a stay, the hardship or
inequity which a party may suffer in being required to go
forward, and the orderly course of justice measured in terms
of the simplifying or complicating of issues, proof, and
questions of law which could be expected to result from a
stay.” Id.Courts also have used their inherent power to manage
their docket to administratively close cases, which is “the
practical equivalent of a stay.” Quinn v. CGR, 828 F.2d
1463, 1465 n.2 (10th Cir. 1987); see also Ali v. Quarterman,
607 F.3d 1046, 1049 (5th Cir. 2010). Administrative closure
allows a court to “shelve pending, but dormant, cases”
without a final adjudication. Lehman v. Revolution Portfolio
LLC, 166 F.3d 389, 392 (1st Cir. 1999). Although an
administratively closed case is not counted as active, it “still
exists on the docket” and “may be reopened upon request of
the parties or on the court’s own motion.” Mire v. Full
Spectrum Lending Inc., 389 F.3d 163, 167 (5th Cir. 2004).
In layman’s terms, the case is asleep but not dead.
Because the ability to administratively close a case arises
from the court’s inherent authority, there is no statute or rule
defining when administrative closure is appropriate; it is a
matter of discretion. See Lockyer v. Mirant Corp., 398 F.3d
1098, 1109 (9th Cir. 2005) (recognizing a court’s
10 SARKAR V. GARLAND
“discretionary power” to control its docket under Landis).
We have used the administrative-closure procedure only in
limited situations. One example is when we are seeking
action in the case from another court, such as when we
(1) order a limited remand to the district court, see Cox v.
Allin Corp. Plan, 848 F. App’x 343, 344 (9th Cir. 2021)
(unpublished); (2) transfer a petition for review to a district
court to determine a disputed citizenship claim, see
Anderson v. Holder, 673 F.3d 1089, 1093 (9th Cir. 2012); or
(3) certify a question to a state court, see Himes v. Somatics,
LLC, 29 F.4th 1125, 1127–28 (9th Cir. 2022). Our sister
circuits have likewise granted administrative closure when
awaiting action from another forum related to the subject
case. See, e.g., WRS, Inc. v. Plaza Entm’t, Inc, 402 F.3d 424,
426 (3d Cir. 2005) (administrative closure due to initiation
of bankruptcy proceedings); Quinn, 828 F.2d at 1465(administrative closure due to pending arbitration). We have
also administratively closed a case when we are awaiting a
decision in a different case pending in our court or another
court that will resolve a key issue in the subject case. See,
e.g., Consumer Fin. Prot. Bureau v. CashCall, Inc., No. 18-
55407, 2019 WL 5390028, at *1 (9th Cir. Oct. 21, 2019)
(unpublished) (awaiting a decision from the Supreme
Court).
In these situations, halting the proceedings serves the
efficient resolution of the subject case because we are
delaying our decisionmaking to allow action by a different
panel or a different forum that will impact the nature of the
case pending before us or the basis for our decision.
Harkening back to the competing interests at issue in
requests for stay, halting the proceedings in these
circumstances is efficient because action in the external
proceedings may simplify the “issues, proof, and questions
SARKAR V. GARLAND 11
of law” to be decided in the subject case. CMAX, Inc.,
300 F.2d at 268.
Nothing like those circumstances is present here. The
only reason the parties seek to shelve this case is because the
Government has determined that Sarkar is “not an
immigration enforcement priority.” The Government
suggests that this case can linger without a decision until
such time as the Department of Homeland Security decides
“to proceed with removal.” There is no obstacle to our
proceeding forward and resolving Sarkar’s case, as the
Government conceded at oral argument, nor is it clear that
any efficiency is to be gained by delay.
We reject the parties’ requests. They have not cited to,
and we are unaware of, any authority allowing us to
administratively close a case because the parties do not wish
to have the court decide their case now but may want it to be
decided at some later time. As described, the examples of
where we have granted administrative closure involve
external factors that impact the decision that we must make.
It makes sense as a matter of efficiency for a court to delay
its decision when awaiting some action outside its or the
parties’ control that will impact the decision to be made.
But that is not what is happening here. The parties are
asking us not to decide Sarkar’s petition for review, which
has been pending for nearly five years, as a matter of their
preference. None of the “competing interests” relevant to
staying an appeal counsel in favor of granting their request.
Id. If this case were administratively stayed the court would
lose the effort that it expended in preparing this case for
hearing and it would needlessly retain on its docket a case
that could be resolved. The parties assert that their interests
are not prejudiced by an indefinite stay, but they fail to
demonstrate the opposite—that they will be prejudiced by
12 SARKAR V. GARLAND
the court simply deciding this case. And there is no
indication that the “orderly course of justice” will be served
by an indefinite stay; that is, that the case will be easier to
decide at some later date. Id.That the typical interests that we must consider in
deciding whether to stay an appeal do not counsel in favor
of granting the relief the parties seek is enough reason to
deny the parties’ motions. This relief is a matter of our
discretion, but as the Supreme Court has instructed,
“[d]iscretion is not whim.” Golan v. Saada, No. 20-1034,
__ S. Ct. __, 2022 WL 2135489, at *7 (June 15, 2022)
(alteration in original) (quoting Martin v. Franklin Cap.
Corp., 546 U.S. 132, 139 (2005)). But our decision is further
supported by the various means that the executive branch has
at its disposal to forgo a judicial decision if it deems a case
unworthy of enforcement, none of which interfere with
normal judicial process. On a broad level, “an agency’s
decision not to prosecute or enforce, whether through civil
or criminal process, is a decision generally committed to an
agency’s absolute discretion.” Heckler v. Chaney, 470 U.S.
821, 831 (1985). That is especially true in the immigration
context, where the Supreme Court has recognized that “the
Attorney General’s discrete acts of ‘commenc[ing]
proceedings, adjudicat[ing] cases, [and] execut[ing] removal
orders’” are exercises in prosecutorial discretion “which
represent the initiation or prosecution of various stages in the
deportation process.” Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 483 (1999) (alterations in original)
(quoting 8 U.S.C. § 1252(g)); see Vasquez v. Garland, No.
18-70824, 2021 WL 3485910, at *3 (9th Cir. Aug. 9, 2021)
(unpublished) (Bea, J., concurring). “At each stage the
Executive has discretion to abandon the endeavor . . . for
humanitarian reasons or simply for its own convenience.”
Reno, 525 U.S. at 483–84. In essence, the government is
SARKAR V. GARLAND 13
always in control of an alien’s removal. See Arizona v.
United States, 567 U.S. 387, 396 (2012) (“Federal
[immigration] officials . . . must decide whether it makes
sense to pursue removal at all.”); see also Memorandum
from John D. Trasviña, ICE Principal Legal Advisor, Interim
Guidance to OPLA Attorneys Regarding Civil Immigration
Enforcement and Removal Policies and Priorities (May 27,
2021) (Trasviña Memo).
We list some of the Government’s specific procedural
tools. It may move to remand the matter to the BIA. Li v.
Keisler, 505 F.3d 913, 918 (9th Cir. 2007) (“[T]he
government [retains] the flexibility to voluntarily remand in
order to correct prior actions that have been subsequently
called into question by emerging case law, claims of changed
circumstances, or other novel considerations.”); see also
Qianchang Wu v. Lynch, 623 F. App’x 433 (9th Cir. 2015)
(unpublished) (granting the government’s remand motion to
the BIA for administrative closure). It may also move to
reopen proceedings with the BIA under 8 C.F.R.
§ 1003.2(a). See He v. Gonzales, 501 F.3d 1128, 1130 (9th
Cir. 2007) (noting that a party filed a motion to reopen with
the BIA “[w]hile their initial petition for review was pending
on appeal to our court”).
If the Government’s efforts to remand or reopen
proceedings before the agency is successful, it has further
options for exercising its prosecutorial discretion in that
forum. See Trasviña Memo 4–10. The Government can
move to dismiss the proceedings altogether. See 8 C.F.R.
§ 1239.2(c). It can seek to narrow the issues in dispute
through stipulation. See Trasviña Memo 4. It can also
request a continuance, see 8 C.F.R. § 1003.29, or that the
BIA administratively close a case, which is expressly
allowed in specified circumstances, see, e.g., 8 C.F.R.
14 SARKAR V. GARLAND
§§ 1214.2, 1214.3; see also Trasviña Memo 7–8. And if the
Government ultimately takes steps to undermine or displace
a final order of removal, we lack jurisdiction to review its
choice and must dismiss any petition for review pending on
our docket. See, e.g., Lopez-Ruiz v. Ashcroft, 298 F.3d 886,
887 (9th Cir. 2002) (order); see also Viloria v. Lynch, 808
F.3d 764, 767–68, 770 (9th Cir. 2015).
The burden is on the Government to use one of the many
tools it has for not enforcing immigration law in a particular
case if that is its policy preference. Shelving a case
indefinitely on our docket to avoid having a final decision
rendered in a case properly presented to us is not one of those
tools. Indeed, this case demonstrates the absurdity of what
the parties are asking. Sarkar filed his petition in August
2017. A stay of removal was entered a few months later, and
the case has been fully briefed since August 2018. Given our
significant backlog of immigration cases, this case was not
moved toward resolution until over three years later in
October 2021 when we asked the parties whether they still
wanted to proceed to decision or whether they anticipated an
alternative resolution. Both parties responded that they
wanted to proceed. The court then scheduled the case for oral
argument and we began our preparations only to have the
parties request a few weeks later that the case be
administratively stayed because it is not an enforcement
priority. This is not a good use of judicial resources. The
executive branch should sort out its enforcement priorities,
about which we express no opinion, without burdening the
already-strapped judiciary.
Finally, we note that regardless of our decision in this
case, the Government has still more options for not pursuing
enforcement against Sarkar if that is what it wishes. It may
decide not to execute a final order of removal. See Trasviña
SARKAR V. GARLAND 15
Memo 4. It also may grant Sarkar new relief, for example if
Sarkar files a new motion to reopen based on approval of his
pending I-130 visa petition. See 8 C.F.R. § 1003.2(c)(1);
Kalilu v. Mukasey, 548 F.3d 1215, 1217–18 (9th Cir. 2008)
(per curiam) (describing a petitioner’s ability to file a motion
to reopen with an approved I-130 visa petition). Nothing
about our denial of the parties’ motion for administrative
closure prevents the Government from exercising its
enforcement prerogative in this case.
In sum, our inherent authority to manage our docket,
including by granting administrative closures, is not served
by keeping this case on our docket indefinitely. The
Government has numerous means to avoid enforcement
against Sarkar if that is what it wants. We decline to add
judicial administrative closure to the list of the
Government’s tools. The motions to administratively close
this case are denied.
B. Motion to Reopen
Turning to the merits, we “review the BIA’s denial of a
motion to reopen for an abuse of discretion.” Hernandez-
Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022). The
BIA’s decision “should be left undisturbed unless it is
‘arbitrary, irrational, or contrary to law.’” Yan Rong Zhao v.
Holder, 728 F.3d 1144, 1147 (9th Cir. 2013) (quoting He,
501 F.3d at 1131).
“An alien ordered to leave the country has a statutory
right to file a motion to reopen his removal proceedings.”
Mata v. Lynch, 576 U.S. 143, 144 (2015); see 8 U.S.C.
§ 1229a(c)(7)(A). “Motions to reopen are disfavored due to
the ‘strong public interest in bringing litigation to a close.’”
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1150–51 (9th Cir.
2010) (per curiam) (quoting INS v. Abudu, 485 U.S. 94, 107
16 SARKAR V. GARLAND
(1988)). “They are particularly disfavored in immigration
proceedings, where ‘every delay works to the advantage of
the deportable alien who wishes merely to remain in the
United States.’” Id. (quoting INS v. Doherty, 502 U.S. 314,
323 (1992)). Generally, an alien may file only one motion to
reopen, and it must be filed within 90 days from the entry of
a final order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8
C.F.R. § 1003.2(c)(2). However, “[t]here is no time limit on
the filing of a motion to reopen” when the motion “is based
on changed country conditions arising in the country of
nationality or in 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 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
Hernandez-Ortiz, 32 F.4th at 804.
“To prevail on such a motion, a petitioner must thus clear
four hurdles.” Hernandez-Ortiz, 32 F.4th at 804 (internal
quotations and citation omitted). Those hurdles are:
(1) produce evidence that conditions have
changed in the country of removal; (2)
demonstrate that the evidence is material; (3)
show that the evidence was not available and
would not have been discovered or presented
at the previous hearings; and (4) demonstrate
. . . prima facie eligibility for the relief
sought.
Id. (internal quotations and citation omitted). The BIA may
“deny the motion to reopen for failing to meet any of these
burdens.” Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir.
2008).
Sarkar does not dispute that his third motion to reopen is
untimely and numerically barred. Instead, he argues that his
SARKAR V. GARLAND 17
newly submitted country conditions evidence is material and
establishes prima facie eligibility for his requested asylum,
withholding of removal, and CAT relief. In his view, the new
evidence “establish[es] the growing influence of Jihadist
extremists on law and society, attacks on secularists,
acceptance of underage marriage, rewriting of textbooks,
and a stark rise in Islamic extremism, intimidation, and
violence.” And Sarkar argues that considering “his past
political activism in the Jatiyya party, . . . [he] has
established an individualized risk of targeting on account of
his political beliefs, and, minimally, a well-founded fear of
future persecution” and, therefore, that the BIA abused its
discretion in denying his motion to reopen.
Sarkar’s arguments are unpersuasive. The BIA did not
abuse its discretion in concluding that his new evidence was
(1) not material to Sarkar and (2) insufficient to demonstrate
a prima facie claim for relief. First, as the Government
contends, none of the evidence that Sarkar produces relates
to membership in the Jatiya party or members of that party
who speaks up against Islamic extremism. Although Sarkar
contends that the changes in marriage laws, the removal of
certain poems and stories from educational textbooks, and a
terrorist attack that killed mostly foreigners show a change
in Bangladesh’s acceptance of radical Islam, he failed to
show that those conditions more severely impact him and his
family than the population at large. See Najmabadi v.
Holder, 597 F.3d 983, 989–90 (9th Cir. 2010) (noting that
the petitioner’s evidence lacked materiality because “it
simply recounts generalized conditions” in the country of
removal). Thus, Sarkar has fallen short of his burden to show
“individualized relevancy” and “that [his] predicament is
appreciably different from the dangers faced by [his] fellow
citizens.” Id. (citation omitted). This reason alone shows the
BIA did not abuse its discretion. Toufighi, 538 F.3d at 996.
18 SARKAR V. GARLAND
The BIA also permissibly denied Sarkar’s motion to
reopen because he has not established a prima facie claim for
any relief. Prima facie eligibility for relief “is established
when ‘the evidence reveals a reasonable likelihood that the
statutory requirements for relief have been satisfied.’”
Tadevosyan v. Holder, 743 F.3d 1250, 1255 (9th Cir. 2014)
(quoting Garcia v. Holder, 621 F.3d 906, 912 (9th Cir.
2010)); see also Hernandez-Ortiz, 32 F.4th at 804–05. Said
another way, Sarkar “must adduce evidence that, along with
the facts already in the record, will support the desired
finding if evidence to the contrary is disregarded.” Silva v.
Garland, 993 F.3d 705, 718 (9th Cir. 2021) (internal
quotation marks and citation omitted).
We first must determine whether Sarkar established a
prima facie case for asylum or withholding of removal.
Absent past persecution, such as is the case here, he must
demonstrate “a well-founded fear of future persecution” in
Bangladesh on account of a protected ground to qualify for
asylum. 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b). To
meet this burden, he must prove both a subjective and
objective risk of future persecution. See Silva, 993 F.3d
at 719. “The objective component requires a showing, by
credible, direct, and specific evidence in the record, of facts
that would support a reasonable fear of persecution.” Id.
(quoting Limsico v. INS, 951 F.2d 210, 212 (9th Cir. 1991)).
For withholding of removal, Sarkar must present
evidence that it is “more likely than not that he . . . would be
persecuted on account of” a protected ground. 8 C.F.R.
§ 1208.16(b)(2). “The ‘more likely than not’ standard for
withholding of removal is ‘more stringent’ than the
‘reasonable possibility’ standard for asylum, and therefore
an applicant who is unable to show a ‘reasonable possibility’
of future persecution ‘necessarily fails to satisfy the more
SARKAR V. GARLAND 19
stringent standard [for likelihood of future persecution] for
withholding of removal.’” See Silva, 993 F.3d at 719
(quoting Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir.
2004)).
Sarkar has not submitted evidence of “direct” and
“specific” facts establishing he has a reasonable fear of
persecution. Id. The protected ground that he asserts is his
political affiliation with the Jatiya party and opposition to
Islamic religious extremism. But as explained above, his
affidavit and articles are “too speculative to be credited as a
basis for fear of future persecution.” Nagoulko v. INS,
333 F.3d 1012, 1018 (9th Cir. 2003). The BIA correctly
concluded that Sarkar’s new evidence did not demonstrate
“an individualized risk of persecution” or that he “would be
subject to a pattern or practice of persecution” based on his
political affiliation. See Bhasin v. Gonzales, 423 F.3d 977,
984 (9th Cir. 2005) (noting that an applicant “must generally
show an individualized, rather than a generalized, risk of
persecution” to establish prima facie eligibility for asylum or
withholding of removal).
Sarkar attempts to connect generalized evidence of
increased Islamic extremism with his contentions that he has
become known “as a fierce opponent of religious
extremism” and he has “no doubt” that he is known as an
enemy “within the Bangladesh Jihadi/Extremist network.”
But his evidence fails to establish a nexus between a
reasonable fear of future persecution and his proposed
protected grounds; it points to generalized crime and societal
shifts that do not target him or those in his proposed social
groups. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229
(9th Cir. 2016) (denying an asylum claim based on changed
circumstances because the evidence “points to troubling
accounts of violence and kidnaping in Mexico,” but does not
20 SARKAR V. GARLAND
“specifically show that violent individuals are targeting”
persons in petitioners’ proposed social group); Feng Gui Lin
v. Holder, 588 F.3d 981, 986 (9th Cir. 2009) (declining to
find changed country circumstances when the petitioner’s
evidence was insufficiently specific). As a result, we
conclude that the BIA did not abuse its discretion in rejecting
Sarkar’s asylum and withholding of removal claims. 2
Finally, to qualify for CAT protection, Sarkar must
“establish that it is more likely than not that he . . . would be
tortured if removed to [Bangladesh].” 8 C.F.R.
§ 1208.16(c)(2). The BIA concluded that Sarkar’s new
country conditions evidence failed to meet this standard,
which was neither arbitrary nor irrational. The BIA
considered the proffered evidence and, for reasons already
discussed, correctly determined that it was immaterial to
Sarkar’s assertion that he is now more likely than not to face
torture if returned to Bangladesh. See Silva, 993 F.3d at 719
(concluding that the BIA did not abuse its discretion in
concluding that speculative evidence did not establish the
“more likely than not” standard for CAT protection);
Delgado-Ortiz, 600 F.3d at 1152 (holding that generalized
2
Sarkar also contends that “the Board erred in failing to remand the
proceedings for consideration . . . where [he] had earlier testified he had
been tortured by police ion [sic] two occasions.” It is true that the BIA
declined to “revisit” his “allegations of persecution” that were previously
considered and rejected as not credible. But this is not a situation where
the BIA made its own adverse credibility finding or improperly applied
the prior credibility finding to a new basis for relief. See Yang v. Lynch,
822 F.3d 504, 509 (9th Cir. 2016). The BIA therefore did not err by
failing to revisit previously rejected arguments. See Greenwood v.
Garland, __ F.4th __, 2022 WL 2165571, at *3–4 (9th Cir. 2022)
(explaining that adverse credibility determinations can impact a later
motion to reopen).
SARKAR V. GARLAND 21
evidence of crime in Mexico could not establish prima face
eligibility for CAT protection).
PETITION FOR REVIEW DENIED.