17-1677
    Rahman v. Whitaker
                                                                                   BIA
                                                                           A089 114 546
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 11th day of February, two thousand nineteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             PETER W. HALL,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________

    MAKSUDUR RAHMAN,
             Petitioner,

                     v.                                          17-1677
                                                                 NAC
    MATTHEW G. WHITAKER, ACTING
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                   Khagendra Gharti-Chhetry,
                                      New York, NY.

    FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
                                      Attorney General; Jessica E.
                                      Burns, Senior Litigation Counsel;
                                      Edward C. Durant, Attorney, Office
                                      of Immigration Litigation, United
                                      States Department of Justice,
                                      Washington, DC.
    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Maksudur Rahman, a native and citizen of the

Bangladesh, seeks review of an April 28, 2017, decision of

the BIA denying his motion to reopen.   In re Maksudur Rahman,

No. A089 114 546 (B.I.A. Apr. 28, 2017).       We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

    We review the BIA’s denial of Rahman’s motion to reopen

for abuse of discretion and consider whether its conclusion

regarding changed country conditions is supported by

substantial evidence.   Jian Hui Shao v. Mukasey, 

, 168-69 (2d Cir. 2008).   It is undisputed that Rahman’s

2016 motion to reopen was untimely as it was filed

approximately four years after his removal order.    See

8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

Accordingly, to succeed on his motion to reopen, Rahman had

to demonstrate both his prima facie eligibility for the

relief sought (asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”)) and that his
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untimely filing was excused.    Poradisova v. Gonzales, 

, 78 (2d Cir. 2005).    The time limitation for filing

a motion to reopen does not apply if reopening is sought to

apply for asylum and the motion “is based on changed

country conditions arising in the country of nationality or

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 also 8

C.F.R. § 1003.2(c)(3)(ii).    The agency did not abuse its

discretion in denying reopening because, as discussed

below, Rahman failed to establish either his prima facie

eligibility relief or a material change in conditions given

the underlying adverse credibility determination and the

lack of evidence that he would be targeted as a result of

the rise in extremist violence.

    Rahman asserted that Islamic terrorists would perceive

him as an outsider for living in the United States and target

him on that basis.     He also claimed that the ruling Awami

League   was   exploiting   public   fear   stemming   from   this

terrorist violence to persecute political opponents.      He also

alleged that members of the Awami League continue to seek him

out and target his family.
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       First, the BIA did not err in denying the motion based

on Rahman’s failure to file a new asylum application because

a motion to reopen “must be accompanied by the appropriate

application for relief.”     8 C.F.R. § 1003.2(c)(1).

       Second, as the agency found, Rahman’s county conditions

evidence of the rise in terrorist incidents is not material

because general violence or crime is not a basis for asylum

or withholding of removal.     See Melgar de Torres v. Reno, 

, 314 (2d Cir. 1999); Matter of Mogharrabi, 19 I. &

N. Dec. 439, 447 (BIA 1987).         Moreover, his evidence that

foreign diplomats are seeking more security in light of this

terrorist violence does not support his speculative claim

that    terrorists   will   target   him   as   an   “outsider”   or

“foreigner” as he has not described how or why terrorist

organizations would view him as similarly situated to foreign

diplomats.    See Jian Xing Huang v. U.S. INS, 

,

129 (2d Cir. 2005) (“In the absence of solid support in the

record,” an applicant’s “fear is speculative at best.”); see

also C.F.R. §§ 1208.13(b)(2)(iii), 1208.16(b)(2) (providing

that applicant can establish fear of future persecution by

showing he would be “singled out” for harm); Mu-Xing Wang v.

Ashcroft, 

, 144 (2d Cir. 2003) (requiring CAT



                                 4
applicant to show that someone in his “particular alleged

circumstances” would likely be tortured).

       Third, Rahman’s contention that the country conditions

evidence reflects a more dangerous situation “for those who

have previously been the target of violent individuals,”

fails because he was found not credible in the underlying

proceedings.        The BIA did not err in finding that Rahman’s

letters from family members and friends were insufficient to

overcome that prior adverse credibility determination.                      See

Qin Wen Zheng v. Gonzales, 

, 148 (2d Cir. 2007)

(holding that the BIA may decline to credit documentary

evidence     submitted    with   a    motion      to   reopen    if   it    has

“legitimate concerns about [the petitioner’s] credibility”

based on a previous adverse credibility determination and the

petitioner offers no other corroborating evidence); see also

Y.C.    v.   Holder,    

,   332    (2d   Cir.    2013)     (“We

generally defer to the agency’s evaluation of the weight to

be afforded an applicant’s documentary evidence.”).

       Thus, on this record, the agency was not compelled to

conclude     that     Rahman’s   evidence       reflected    a   change     in

conditions material to his fear of harm or his prima facie

eligibility     for    relief.       See    8   U.S.C.   §   1252(b)(4)(B)

(“[A]dministrative findings of fact are conclusive unless any
                                      5
reasonable adjudicator would be compelled to conclude to the

contrary.”); see also Jian Hui 

.

    For the foregoing reasons, the petition for review is

DENIED.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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