Filed: Dec. 03, 2015
Latest Update: Mar. 02, 2020
Summary: 13-1221 (L) Sarker v. Lynch BIA Videla, IJ A073 569 231 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
Summary: 13-1221 (L) Sarker v. Lynch BIA Videla, IJ A073 569 231 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 ..
More
13-1221 (L)
Sarker v. Lynch
BIA
Videla, IJ
A073 569 231
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 3rd day of December, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 MIZANUR RAHMAN SARKER, AKA
14 MOHAMMED MIZANUR RAHMAN,
15 Petitioner,
16
17 v. 13-1221 (L),
18 13-3290 (Con)
19 NAC
20
21 LORETTA E. LYNCH, UNITED STATES
22 ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Paul O’Dwyer, New York, NY.
27
28 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
29 General; Nancy E. Friedman, Senior
1 Litigation Counsel; Allen W.
2 Hausman, Senior Litigation Counsel,
3 Office of Immigration Litigation,
4 United States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of these petitions for review of
8 Board of Immigration Appeals (“BIA”) decisions, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the lead petition for
10 review is DISMISSED, the consolidated petition is DENIED,
11 and the pending motions are DISMISSED as moot.
12 Mizanur Rahman Sarker, a native and citizen of
13 Bangladesh, seeks review of a March 5, 2013 decision of the
14 BIA affirming an Immigration Judge’s (“IJ”) August 3, 2011
15 decision denying his application for adjustment of status.
16 In re Mizanur Rahman Sarker, No. A073 569 231 (B.I.A. Mar.
17 5, 2013), aff’g No. A073 569 231 (Immig. Ct. N.Y. City Aug.
18 3, 2011). Sarker also seeks review of an August 6, 2013 BIA
19 decision denying his motion to reopen. In re Mizanur Rahman
20 Sarker, No. A073 569 231 (B.I.A. Aug. 6, 2013). We assume
21 the parties’ familiarity with the underlying facts and
22 procedural history in this case.
23 13-1221 (L)
24 Sarker does not challenge the agency’s denial of his
25 application for adjustment of status in either his brief to
2
1 this Court or his motion papers. Accordingly, he has waived
2 any challenge to the denial of that application.
3 Consequently, petition 13-1221 is DISMISSED and the
4 Government’s motion to sever the petitions and dismiss the
5 case is DENIED as moot.
6 13-3290 (Con)
7 Sarker challenges the BIA’s denial of his motion to
8 reopen. We review the BIA’s denial of a motion to reopen
9 for abuse of discretion, remaining mindful of the Supreme
10 Court’s admonition that such motions are “disfavored.” Ali
11 v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
12 Doherty,
502 U.S. 314, 322-23 (1992)); Kaur v. BIA,
413 F.3d
13 232, 233 (2d Cir. 2005). An alien seeking to reopen
14 proceedings may file one motion to reopen no later than 90
15 days after the date on which the final administrative
16 decision was rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8
17 C.F.R. § 1003.2(c)(2). The motion must state the new facts
18 to be considered at the reopened hearing, and must be
19 supported by material, previously unavailable evidence. 8
20 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). The “BIA
21 may deny a motion to reopen” if “the movant has not
22 established a prima facie case for the underlying
3
1 substantive relief sought.” INS v. Abudu, 485 U.S. 94, 104
2 (1988). In order to establish prima facie eligibility for
3 asylum, a movant must demonstrate “a realistic chance that
4 he will be able to establish eligibility” during reopened
5 proceedings. Poradisova v. Gonzales,
420 F.3d 70, 78 (2d
6 Cir. 2005) (internal quotation marks omitted).
7 Regardless of whether Sarker’s motion should be
8 considered timely filed, or the filing deadline equitably
9 tolled, the BIA denied the motion on the alternate ground
10 that Sarker had not submitted material evidence to establish
11 his prima facie eligibility for relief. The BIA did not
12 abuse its discretion in denying the motion on that ground.
13 Sarker claims that he fears persecution in Bangladesh
14 because he was involved in an adulterous relationship with a
15 woman who is now his wife. However, the general country
16 conditions evidence he submitted in support of his motion
17 does not discuss how men are treated for perceived moral
18 transgressions. There are articles discussing three
19 instances in which women were beaten or killed in Bangladesh
20 because they had affairs, but the evidence does not address
21 how society treats adulterers of either sex. Further, the
22 articles state that in each instance, those who harmed the
4
1 women were arrested. Sarker argues that any harm to his
2 wife in Bangladesh because of the adulterous origin of their
3 relationship would constitute persecution of him as well.
4 However, “applicants can become candidates for asylum relief
5 only based on persecution that they themselves have suffered
6 or must suffer.” Shi Liang Lin v. U.S. Dep’t of Justice,
7 494 F.3d 296, 308 (2d Cir. 2007). In any event, Sarker’s
8 wife is a U.S. citizen, and accordingly is not at risk of
9 being ordered removed from this country.
10 Sarker presented no evidence to show that anyone in
11 Bangladesh sought to harm him personally. Hongsheng Leng v.
12 Mukasey,
528 F.3d 135, 143 (2d Cir. 2008). Sarker claimed
13 that his family, and his wife’s family, would seek to harm
14 them because of their relationship. Because the agency
15 previously found Sarker not credible, however, and because
16 he did not swear or attest to the truthfulness of his
17 statement, the BIA did not err in giving the statement
18 limited weight. Qin Wen Zheng v. Gonzales,
500 F.3d 143,
19 147 (2d Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of Justice,
20
471 F.3d 315, 342 (2d Cir. 2006).
21 Because the evidence Sarker submitted did not show his
22 prima facie eligibility for asylum, the BIA did abuse its
5
1 discretion in denying his motion on that basis. And because
2 the BIA’s conclusion did not rely upon whether Sarker’s
3 motion was timely, his motion to remand to reconsider the
4 timeliness of the motion is denied as moot.
5 For the foregoing reasons, the lead petition for review
6 is DISMISSED, and the consolidated petition is DENIED. The
7 Government’s pending motion for summary denial of petition
8 13-1221, and Sarker’s pending motion for remand to consider
9 the timeliness of his motion to reopen, are DISMISSED as
10 moot.
11 As we have completed our review, any stay of removal
12 that the Court previously granted in these petitions is
13 VACATED, and any pending motion for a stay of removal is
14 DISMISSED as moot. Any pending request for oral argument in
15 these petitions is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
22
6
