Filed: Sep. 16, 2020
Latest Update: Sep. 16, 2020
Summary: 18-373 Rafiq v. Barr BIA A073 612 832 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
Summary: 18-373 Rafiq v. Barr BIA A073 612 832 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 ..
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18-373
Rafiq v. Barr
BIA
A073 612 832
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
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 16th day of September, two thousand twenty.
PRESENT:
JON O. NEWMAN,
ROBERT D. SACK,
STEVEN J. MENASHI,
Circuit Judges.*
_____________________________________
AJMAL RAFIQ, AKA AJMAL CHAUDARY
RAFIQ,
Petitioner,
v. 18-373
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell,
New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant
Attorney General; Jeffrey R.
Leist, Senior Litigation Counsel;
Raya Jarawan, Trial Attorney,
* Circuit Judge Peter W. Hall, originally a member of the panel, is
currently unavailable. Circuit Judge Jon O. Newman has replaced Judge
Hall on the panel for this matter. See 2d Cir. IOP E(b).
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 Ajmal Rafiq, a native and citizen of Pakistan,
seeks review of a January 11, 2018, decision of the BIA
denying his motion to reopen. In re Ajmal Rafiq, No. A073
612 832 (B.I.A. Jan. 11, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
The applicable standards of review are well established.
See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
2008). In his motion to reopen, Rafiq asserted that in 2007,
extremists in Pakistan attacked his brothers, killing one of
them, and that he fears being kidnapped or killed because he
is Ahmadi and he has ties to the United States.
A noncitizen seeking to reopen removal proceedings must
demonstrate his prima facie eligibility for relief from
removal, “which means []he must show a ‘realistic chance’
that []he will be able to obtain such relief.” Id. at 168.
The movant also must file a motion to reopen no later than 90
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days after the date on which the final administrative decision
was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). It is undisputed that Rafiq’s 2017 motion
to reopen was untimely because it was filed more than eight
years after his removal order became final in 2009. See
8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
However, this time limitation does not apply if the motion is
filed to apply for asylum “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 proceedings.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
The BIA did not err in finding that Rafiq’s evidence did not
establish his prima facie eligibility for relief or a material
change in conditions in Pakistan.
Rafiq’s evidence of the 2007 attack against the brothers
did not demonstrate his prima facie eligibility for relief or
a material change in country conditions because he did not
assert that he shares the characteristic that motivated his
brothers’ attackers or any basis to conclude that the
attackers would target him. See Jian Hui Shao, 546 F.3d at
3
168; see also Jian Xing Huang v. U.S. INS,
421 F.3d 125, 129
(2d Cir. 2005) (“In the absence of solid support in the record
. . . [an applicant’s] fear is speculative at best.”); Melgar
de Torres v. Reno,
191 F.3d 307, 313 (2d Cir. 1999) (finding
no error in BIA’s decision that petitioner failed to establish
a well-founded fear of persecution based on her uncle’s murder
when she presented no direct evidence that her uncle was
killed on account of his political opinion). Similarly,
Rafiq’s country conditions evidence was not material because,
although it provided that religious extremists carry out
terrorist attacks in Pakistan, it did not mention violence or
terrorism directed at Ahmadis or Pakistanis repatriated from
the United States.
Accordingly, because Rafiq failed to demonstrate his
prima facie eligibility for relief or that conditions in
Pakistan had materially changed, the BIA did not abuse its
discretion in denying his motion to reopen. See 8 U.S.C.
§ 1229a(c)(7)(C); see also Jian Hui Shao, 546 F.3d at 168.
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For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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