Anwar v. Barr

Opinion

18-2164 Anwar v. Barr BIA

A095 102 165

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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 13th day of September, two thousand 5 nineteen. 6 7 PRESENT: 8 PETER W. HALL, 9 JOSEPH F. BIANCO, 10 MICHAEL H. PARK, 11 Circuit Judges. 12 _____________________________________ 13 14 NADEEM ANWAR, 15 Petitioner, 16 17 v. 18-2164 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Yaniv Lavy, Feiner & Lavy, P.C., 25 New York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant 28 Attorney General; Claire L. 29 Workman, Senior Litigation 30 Counsel; John B. Holt, Trial 31 Attorney, Office of Immigration 32 Litigation, United States 33 Department of Justice, Washington, 34 DC.

1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Nadeem Anwar, a native and citizen of 6 Pakistan, seeks review of a June 22, 2018 decision of the BIA 7 denying his motion to reopen. In re Nadeem Anwar, No. A 095 8 102 165 (B.I.A. June 22, 2018). We assume the parties’ 9 familiarity with the underlying facts and procedural history 10 in this case. 11 We review the BIA’s denial of a motion to reopen for 12 abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 13 138, 168-69 (2d Cir. 2008). It is undisputed that Anwar’s 14 2018 motion to reopen was untimely as it was filed more than 15 10 years after the BIA’s decision affirming his removal order. 16 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 17 Nevertheless, an applicant may, at any time, move to reopen 18 his case “based on changed country conditions arising in the 19 country of nationality or the country to which removal has 20 been ordered, if such evidence is material and was not 21 available and would not have been discovered or presented at

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1 the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 2 also 8 C.F.R. § 1003.2(c)(3)(ii). To prevail on such a 3 motion, however, the applicant also must establish his prima 4 facie eligibility for the relief sought—in this case, asylum, 5 withholding of removal, and relief under the Convention 6 Against Torture. See Poradisova v. Gonzales, 420 F.3d 70, 7 78 (2d Cir. 2005); see also Abudu v. INS, 485 U.S. 94, 104 8 (1988) (identifying failure to present “previously 9 unavailable material evidence” and failure to establish prima 10 facie eligibility as independent dispositive grounds for 11 denying reopening). Accordingly, and contrary to Anwar’s 12 position, the BIA’s conclusion that Anwar failed to establish 13 prima facie eligibility for relief was dispositive, and the 14 BIA was not required to determine whether there had been a 15 change in conditions in Pakistan. 16 Nor did the BIA abuse its discretion in finding that 17 Anwar failed to demonstrate his prima facie eligibility for 18 asylum and related relief. When reviewing a motion to 19 reopen, the BIA may rely on an underlying adverse credibility 20 determination. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 21 146-47 (2d Cir. 2007). Here, the BIA relied on the fact that

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1 Anwar was found not credible in the underlying proceedings, 2 and it concluded that his new evidence failed to rebut the 3 underlying adverse credibility determination. See Kaur v. 4 BIA, 413 F.3d 232, 234 (2d Cir. 2005). But Anwar has waived 5 any challenge to the BIA’s reliance on the adverse credibility 6 determination, failing to address it in his brief. Instead, 7 he mistakenly argues that the hearing transcript and 8 underlying decision of the immigration judge are not in the 9 record. They are. Certified Administrative Record at 528- 10 43 (IJ Dec.), 562-646 (Tr.). Thus, Anwar has waived the 11 dispositive basis for the BIA’s decision. See Yueqing Zhang 12 v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005). 13 Even if we were to reach the merits of the BIA’s decision, 14 we would find no abuse of discretion. As noted above, the 15 BIA was permitted to rely on the underlying adverse 16 credibility determination. See Qin Wen Zheng, 500 F.3d 143, 17 146-47; Kaur, 413 F.3d at 234. And the BIA reasonably 18 concluded that Anwar’s allegedly new evidence—which consisted 19 of un-notarized letters from individuals in Pakistan that 20 appeared to be prepared solely for the motion—was of minimal 21 evidentiary weight and failed to rehabilitate his

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1 credibility. See Qin Wen Zheng, 500 F.3d at 147-48; Y.C. v. 2 Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer 3 to the agency’s evaluation of the weight to be afforded an 4 applicant’s documentary evidence.”). Though Anwar claims 5 that the BIA ignored one letter from his political party in 6 Pakistan, the agency referred to all of his letters 7 collectively and was not required to “expressly parse or 8 refute . . . [each] piece of evidence.” Jian Hui Shao, 546 9 F.3d at 169 (internal quotation marks omitted). Similarly, 10 Anwar’s argument that the BIA ignored a letter from his 11 brother and a police report is without merit. The documents 12 were not material: the letter from his brother reiterated 13 previously discredited claims and did not resolve 14 inconsistencies in the underlying testimony and evidence, and 15 the police report related to current conditions in Pakistan, 16 not to the credibility of Anwar’s claim. 17 For the foregoing reasons, the petition for review is 18 DENIED, and the pending motion for a stay of removal is 19 DISMISSED as moot.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, 22 Clerk of Court