Filed: Dec. 17, 2010
Latest Update: Feb. 21, 2020
Summary: 10-347-ag Hussain v. Holder BIA A078 698 652 A078 698 653 A078 698 654 A078 698 655 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 E
Summary: 10-347-ag Hussain v. Holder BIA A078 698 652 A078 698 653 A078 698 654 A078 698 655 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 EL..
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10-347-ag
Hussain v. Holder
BIA
A078 698 652
A078 698 653
A078 698 654
A078 698 655
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 17 th day of December, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 RALPH K. WINTER,
11 Circuit Judges.
12 _______________________________________
13
14 ABID N. HUSSAIN, SHAHIDA PARVEEN,
15 QURAT UL AIN ABID, AMBREEN ABID
16 Petitioners,
17
18 v. 10-347-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONERS: H. Raymond Fasano, New York, New
26 York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Linda S. Wernery, Assistant
1 Director; Theodore C. Hirt,
2 Attorney, Office of Immigration
3 Litigation, Civil Division, United
4 States Department of Justice,
5 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioners, all natives and citizens of Pakistan, seek
6 review of a January 28, 2010, order of the BIA denying their
7 motion to reopen their removal proceedings. In re Hussain,
8 et. al., Nos. A078 698 652/653/654/655 (B.I.A. Jan. 28,
9 2010). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien who has been ordered removed may
14 file one motion to reopen, but must do so within 90 days of
15 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
16 Here, the BIA did not abuse its discretion by denying
17 Petitioners’ motion to reopen, as their motion was filed in
18 February 2009, more than one year after the entry of their
19 August 2008 final order of removal. See id.; 8 C.F.R.
20 § 1003.2(c)(2).
2
1 Alternatively, the BIA acted within its discretion in
2 denying the motion by reason of Petitioners’ failure to
3 comply with the requirements for reopening. As the BIA
4 found, Petitioners failed to submit an asylum application in
5 conjunction with their motion to reopen, as required under
6 the regulations. See 8 C.F.R. § 1003.2(c)(1). Petitioners
7 have failed to challenge this dispositive ground for the
8 denial of reopening. The petition for review is therefore
9 denied. See Steevenez v. Gonzales, 476 F.3d 114, 118 (2nd
10 Cir. 2007) (denying the petition for review because
11 petitioner failed to challenge a dispositive ground for
12 relief).
13 Moreover, the BIA reasonably concluded that Petitioners
14 failed to establish changed country conditions in Pakistan
15 such that the time and number limits on their motion to
16 reopen should be excused. See 8 U.S.C.
17 § 1229a(c)(7)(C)(ii). The evidence Petitioners submitted in
18 support of their motion indicated deteriorating conditions
19 in Pakistan. However, Petitioners fail to point to evidence
20 in the record establishing a material change; the background
21 documentation submitted in support of the original
22 application provided similar information regarding sectarian
23 violence in Pakistan. See Matter of S-Y-G-, 24 I. & N. Dec
3
1 247, 253 (BIA 2007) (finding that, “[i]n determining whether
2 evidence accompanying a motion to reopen demonstrates a
3 material change in country conditions that would justify
4 reopening, we compare the evidence of country conditions
5 submitted with the motion to those that existed at the time
6 of the merits hearing below”). Substantial evidence thus
7 supports the BIA’s determination that Petitioners failed to
8 establish changed country conditions. See 8 C.F.R.
9 § 1003.2(c)(2), (c)(3)(ii); see also Jian Hui Shao v.
10 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (holding that when
11 the BIA considers relevant evidence of country conditions in
12 evaluating a motion to reopen, this Court reviews the BIA’s
13 factual findings under the substantial evidence standard).
14 Given the BIA’s explicit references to the
15 documentation submitted with the motion to reopen, a
16 reasonable fact-finder would not be compelled to conclude
17 (as Petitioners contend) that the BIA ignored any material
18 evidence that Petitioners submitted. See Wei Guang Wang v.
19 BIA,
437 F.3d 270, 275 (2d Cir. 2006) (holding that the BIA
20 is not required to “expressly parse or refute on the record
21 each individual argument or piece of evidence offered by the
22 petitioner” as long as it “has given reasoned consideration
4
1 to the petition, and made adequate findings”); see also Xiao
2 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d
3 Cir. 2006) (presuming that the agency “has taken into
4 account all of the evidence before [it], unless the record
5 compellingly suggests otherwise”).
6 Because the BIA did not abuse its discretion by denying
7 Petitioners’ motion as untimely, see
Ali, 448 F.3d at 517,
8 we need not reach Petitioners’ argument that they are prima
9 facie eligible for relief. See 8 U.S.C.
10 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
11 Petitioners do not challenge the BIA’s remaining findings.
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
5
