Filed: Sep. 27, 2011
Latest Update: Feb. 22, 2020
Summary: 10-2807-ag Hasan v. Holder BIA Montante, IJ A098 930 131 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 TH
Summary: 10-2807-ag Hasan v. Holder BIA Montante, IJ A098 930 131 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..
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10-2807-ag
Hasan v. Holder
BIA
Montante, IJ
A098 930 131
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 27th day of September, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 ABED HASAN,
14 Petitioner,
15
16 v. 10-2807-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Saleem S. Rizvi, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Blair T. O’Connor,
27 Assistant Director; Holly M. Smith,
28 Senior Litigation Counsel, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, 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 Petitioner Abed Hasan, a native and citizen of
6 Pakistan, seeks review of a June 18, 2010, order of the BIA
7 affirming the July 23, 2008, decision of Immigration Judge
8 (“IJ”) Philip J. Montante, Jr., denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Abed Hasan No.
11 A098 930 131 (B.I.A. June 18, 2010), aff’g No. A098 930 131
12 (Immig. Ct. Buffalo July 23, 2008). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 of the case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA decision. See Xue
17 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
18 Cir. 2005). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
21 Hasan raises the following three challenges to the
22 BIA’s burden of proof finding: (1) the IJ failed to admit
23 some of the evidence he proffered; (2) the IJ gave
2
1 insufficient weight to the evidence he did submit; and (3)
2 he provided adequate corroborating documents to support his
3 claim. The first two of those challenges are unexhausted
4 because Hasan did not raise them before the BIA. See Foster
5 v. INS, 376 F.3d 75, 78 (2d Cir. 2004). However, the third
6 challenge is exhausted as it was the basis for the BIA’s
7 decision. See Ruiz-Martinez v. Mukasey,
516 F.3d 102, 112
8 n.7 (2d Cir. 2008).1
9 Substantial evidence supports the BIA’s determination
10 that Hasan failed to meet his burden of proof as to his
11 eligibility for asylum based on his Shia religion and his
12 involvement with a Shia welfare organization. The BIA
13 reasonably concluded that Hasan had not sufficiently
14 corroborated his claim because he did not provide:
15 (1) letters or affidavits from his family members living in
16 the United States; (2) information regarding his Canadian
17 asylum application; (3) information about the existence of,
18 or his membership in, the Shia welfare organization; and
19 (4) letters from the friends with whom he stayed while
1
We do not consider Hasan’s challenges to the IJ’s
adverse credibility determination, or his finding that
Hasan’s asylum application was not timely filed, because
the BIA did not rely on those findings in its decision.
See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005).
3
1 hiding in Pakistan. See 8 U.S.C. § 1158(b)(1)(B)(ii);
2 Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5 (2d Cir. 2009)
3 (providing that corroboration may be expected where
4 “reasonably available” even where testimony is credible).
5 With respect to the affidavits from family members and
6 documentation regarding his Canadian asylum application,
7 Hasan admitted that he could have obtained those documents.
8 He does not assert that the evidence was unavailable, and
9 was unable to provide adequate explanations for his failure
10 to present those documents at his merits hearing. 8 U.S.C.
11 § 1158(b)(1)(B)(ii); Chuilu
Liu, 575 F.3d at 198 n.6
12 (stating that the alien bears the ultimate burden of
13 introducing such evidence without prompting from the IJ).
14 Furthermore, Hasan does not specifically challenge the
15 agency’s finding that he failed to provide corroboration
16 regarding the welfare organization or letters from any of
17 his friends or relatives remaining in Pakistan, and he does
18 not assert that he attempted to obtain those documents or
19 was unable to do so. We have held that the agency’s
20 designation of missing corroboration need not be done prior
21 to the disposition of an alien’s claim. See Chuilu,
575
22 F.3d at 198-99; see also 8 U.S.C. § 1158(b)(1)(B)(ii).
23 Accordingly, as the BIA reasonably concluded, Hasan failed
4
1 to meet his burden of proof because he did not sufficiently
2 corroborate his claim based on his Shia religion. See
3 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu, 575 F.3d at 196-97.
4 Because Hasan failed to establish his eligibility for
5 asylum, he necessarily was unable to meet the higher
6 standard to establish his eligibility for withholding of
7 removal. See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir.
8 2006). The BIA applied the correct legal standard to
9 Hasan’s CAT claim, as it considered whether there was a
10 likelihood that Hasan would be tortured either by the
11 government or with the government’s acquiescence. See
12 Khouzam v. Ashcroft,
361 F.3d 161, 171 (2d Cir. 2004).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20
5
1 Circuit Local Rule 34.1(b).
2
3
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
8
6
