Filed: Dec. 15, 2010
Latest Update: Feb. 21, 2020
Summary: 09-5218-ag Mowla v. Holder BIA A073 612 326 A073 612 327 A073 612 328 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 DATA
Summary: 09-5218-ag Mowla v. Holder BIA A073 612 326 A073 612 327 A073 612 328 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 DATAB..
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09-5218-ag
Mowla v. Holder
BIA
A073 612 326
A073 612 327
A073 612 328
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15 th day of December, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 GUIDO CALABRESI,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11 _________________________________________
12
13 GOLAM MOWLA, NASIMA KHAN, NUSRAT
14 MOWLA,
15 Petitioners,
16
17 v. 09-5218-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONERS: Alexander J. Segal, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Lyle D. Jentzer, Senior
29 Litigation Counsel; Jeffrey L.
30 Menkin, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED, that the petition for review
8 is DENIED.
9 Petitioners, natives and citizens of Bangladesh, seek
10 review of a November 20, 2009, order of the BIA denying
11 their motion to reopen. In re Golam Mowla, Nasima Khan,
12 Nusrat Mowla, Nos. A073 612 326/327/328 (B.I.A. Nov. 20,
13 2009). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 We review the BIA’s denial of a motion to reopen for
16 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
17 (2d Cir. 2006). An alien ordinarily may only file one
18 motion to reopen and must do so within 90 days of the final
19 administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R.
20 § 1003.2(c)(2). However, there is no time or numerical
21 limitation if the alien establishes materially “changed
22 country conditions arising in the country of nationality.”
23 8 U.S.C.
24 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
2
1 The BIA did not abuse its discretion in finding that
2 petitioners failed to establish changed country conditions
3 in Bangladesh sufficient to excuse the untimely filing of
4 their motion to reopen. The BIA properly noted that, “the
5 record as it existed at the time of the Immigration Judge’s
6 August 31, 1998, decision . . . is void of any evidence of
7 conditions in Bangladesh at that time.” Therefore, because
8 petitioners submitted evidence demonstrating only recent
9 conditions in Bangladesh, as opposed to evidence
10 establishing a change in conditions between the initial
11 proceedings and the motion to reopen, see 8 C.F.R.
12 § 1003.2(c)(3)(ii), the BIA reasonably found that
13 petitioners failed to show changed conditions in Bangladesh
14 sufficient to warrant reopening. See Matter of S-Y-G-, 24
15 I. & N. Dec. 247, 253 (BIA 2007) (“In determining whether
16 evidence accompanying a motion to reopen demonstrates a
17 material change in country conditions that would justify
18 reopening, we compare the evidence of country conditions
19 submitted with the motion to those that existed at the time
20 of the merits hearing below.”); see also INS v. Abudu, 485
21 U.S. 94, 107, 110 (1988) (describing motions to reopen as
22 “disfavored” and noting that “the moving party bears a heavy
3
1 burden” in demonstrating that reopening is warranted on the
2 basis of newly discovered evidence). Furthermore, contrary
3 to petitioners’ argument, the BIA was under no obligation to
4 take judicial notice of country conditions evidence not in
5 the record. See 8 C.F.R. § 1003.1(d)(3)(iv); cf. Chhetry v.
6 U.S. Dep’t of Justice, 490 F.3d 196, 199-200 (2d Cir. 2007)
7 (quoting Hoxhallari v. Gonzales,
468 F.3d 179, 186 n.5 (2d
8 Cir. 2006) (per curiam) (recognizing the permissive nature
9 of the BIA’s authority to “exercise independent discretion”
10 in taking notice of commonly known facts)); Yang v. McElroy,
11
277 F.3d 158, 163 n.4 (2d Cir. 2002) (finding it “well-
12 settled that the BIA has the authority to take
13 administrative notice of current events”).
14 Moreover, although, as petitioners point out, the BIA
15 acknowledged that the record included evidence “indicating
16 that Islamic fundamentalist[s] and militants in Bangladesh
17 have increased their influence over the political process,
18 attacked religious minorities and moderate Muslims, and
19 directed their ire against any individuals or groups that
20 profess secularism,” the BIA nevertheless reasonably found
21 that the general rise in Islamic fundamentalism was not
22 material to petitioners’ specific claim that they would be
4
1 targeted as “Americanized Bangladeshis” or that petitioner
2 Nusrat Mowla would be forced into marriage. See Melgar de
3 Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999)
4 (“General violence in [a country] does not constitute
5 persecution, nor can it form a basis for petitioner’s well-
6 founded fear of persecution”). Accordingly, the BIA did not
7 abuse its discretion in denying the motion as petitioners
8 failed to demonstrate their prima facie eligibility for
9 relief. 8 C.F.R. § 1003.2(c)(1), (3)(ii); see Kaur v. BIA,
10
413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
5
