17-2934 Butt v. Barr BIA Verrillo, IJ A089 347 090
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 3rd day of June, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PETER W. HALL, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MOHAMMAD BALAL BUTT, 14 Petitioner, 15 16 v. 17-2934 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Amy Nussbaum Gell, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Shelley R. Goad, 27 Assistant Director; Kristen A. 28 Giuffreda, Trial Attorney, Office 29 of Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 32 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 DISMISSED in part and DENIED in part.
5 Petitioner Mohammad Balal Butt, a native and citizen of
6 Pakistan, seeks review of an August 23, 2017, decision of the
7 BIA affirming a September 30, 2016, decision of an Immigration
8 Judge (“IJ”) denying cancellation of removal, asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Mohammad Balal Butt, No. A089
11 347 090 (B.I.A. Aug. 23, 2017), aff’g No. A089 347 090 (Immig.
12 Ct. Hartford Sept. 30, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We have considered both the IJ’s and the BIA’s decisions
16 “for the sake of completeness.” Wangchuck v. Dep’t of
17 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
18 applicable standards of review are well established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009).
21 Cancellation of Removal
22 Our jurisdiction to review the agency’s denial of
23 cancellation of removal is limited to colorable
2 1 constitutional claims and questions of law. See 8 U.S.C.
2 § 1252(a)(2)(B)(i), (D); Barco-Sandoval v. Gonzales, 516 F.3d
3 35, 39-40 (2d Cir. 2008) (exceptional and extremely unusual
4 hardship determinations by the BIA are discretionary
5 judgments). We review such claims de novo. See Pierre v.
6 Holder, 588 F.3d 767, 772 (2d Cir. 2009). When assessing
7 jurisdiction, we must “study the arguments asserted . . . to
8 determine, regardless of the rhetoric employed in the
9 petition, whether it merely quarrels over the correctness of
10 the factual findings or justification for the discretionary
11 choices, in which case the court would lack jurisdiction, or
12 whether it instead raises a ‘constitutional claim’ or
13 ‘question of law,’ in which case the court could exercise
14 jurisdiction to review those particular issues.” Xiao Ji
15 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
16 2006).
17 A nonpermanent resident, such as Butt, may have his
18 removal cancelled if, among other requirements, he
19 demonstrates that his “removal would result in exceptional
20 and extremely unusual hardship” to his United States citizen
21 or lawful permanent resident spouse, parent, or child.
22 8 U.S.C. § 1229b(b)(1)(D). In relevant part, the agency
3 1 denied relief based on Butt’s failure to show hardship to his
2 wife.
3 It would be an error of law if the agency ignored or
4 “seriously mischaracterize[d]” material facts, see Mendez v.
5 Holder, 566 F.3d 316, 323 (2d Cir. 2009). However, the record
6 reflects that the IJ and BIA properly applied existing
7 precedent and considered Butt’s evidence of hardship.
8 Hardship is a high standard that requires a showing that the
9 “qualifying relatives would suffer hardship that is
10 substantially different from, or beyond, that which would
11 normally be expected from the deportation of an alien with
12 close family members.” In re Monreal-Aguinaga, 23 I. & N.
13 Dec. 56, 65 (B.I.A. 2001); see also In re Andazola-Rivas, 23
14 I. & N. Dec. 319, 322 (B.I.A. 2002) (noting that exceptional
15 and extremely unusual hardship is a “very high standard”).
16 The agency considers, among other evidence, “the ages,
17 health, and circumstances of qualifying lawful permanent
18 resident and United States citizen relatives,” including how
19 a lower standard of living, diminished educational
20 opportunities, or adverse country conditions in the country
21 of removal might affect the relatives. In re Monreal-
22 Aguinaga, 23 I. & N. Dec. at 63; In re Andazola-Rivas, 23 I.
4 1 & N. Dec. at 323; see also In re Gonzalez Recinas, 23 I. & N.
2 Dec. 467 (B.I.A. 2002).
3 The agency applied that standard. It considered Butt’s
4 wife’s psychological records; her medical history, including
5 fertility treatments, and pain from a 2009 car accident; any
6 financial, cultural, and emotional hardship she would endure;
7 and the cumulative impact of the hardship factors. To the
8 extent that Butt argues that the agency gave too little weight
9 to certain evidence, the balancing of factors is beyond our
10 jurisdiction. See Argueta v. Holder, 617 F.3d 109, 113 (2d
11 Cir. 2010).
12 Butt merely “quarrels over the [exercise of discretion
13 and the] correctness of the factual findings reached by the
14 agency,” which we lack jurisdiction to review. Emokah v.
15 Mukasey, 523 F.3d 110, 119 (2d Cir. 2008) (internal quotation
16 marks omitted); see also Xiao Ji Chen, 471 F.3d at 329.
17 Asylum, Withholding of Removal and CAT
18 As an initial matter, Butt’s brief waives review of the
19 denial of asylum by failing to challenge the agency’s
20 timeliness finding. See Yueqing Zhang v. Gonzales, 426 F.3d
21 540, 541 n.1, 545 n.7 (2d Cir. 2005) (noting that petitioner
22 abandons issues and claims not raised in his brief). Absent
23 a constitutional claim or question of law, we lack
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17-2934 Butt v. Barr BIA Verrillo, IJ A089 347 090
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 3rd day of June, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PETER W. HALL, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MOHAMMAD BALAL BUTT, 14 Petitioner, 15 16 v. 17-2934 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Amy Nussbaum Gell, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Shelley R. Goad, 27 Assistant Director; Kristen A. 28 Giuffreda, Trial Attorney, Office 29 of Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 32 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 DISMISSED in part and DENIED in part.
5 Petitioner Mohammad Balal Butt, a native and citizen of
6 Pakistan, seeks review of an August 23, 2017, decision of the
7 BIA affirming a September 30, 2016, decision of an Immigration
8 Judge (“IJ”) denying cancellation of removal, asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Mohammad Balal Butt, No. A089
11 347 090 (B.I.A. Aug. 23, 2017), aff’g No. A089 347 090 (Immig.
12 Ct. Hartford Sept. 30, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We have considered both the IJ’s and the BIA’s decisions
16 “for the sake of completeness.” Wangchuck v. Dep’t of
17 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
18 applicable standards of review are well established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009).
21 Cancellation of Removal
22 Our jurisdiction to review the agency’s denial of
23 cancellation of removal is limited to colorable
2 1 constitutional claims and questions of law. See 8 U.S.C.
2 § 1252(a)(2)(B)(i), (D); Barco-Sandoval v. Gonzales, 516 F.3d
3 35, 39-40 (2d Cir. 2008) (exceptional and extremely unusual
4 hardship determinations by the BIA are discretionary
5 judgments). We review such claims de novo. See Pierre v.
6 Holder, 588 F.3d 767, 772 (2d Cir. 2009). When assessing
7 jurisdiction, we must “study the arguments asserted . . . to
8 determine, regardless of the rhetoric employed in the
9 petition, whether it merely quarrels over the correctness of
10 the factual findings or justification for the discretionary
11 choices, in which case the court would lack jurisdiction, or
12 whether it instead raises a ‘constitutional claim’ or
13 ‘question of law,’ in which case the court could exercise
14 jurisdiction to review those particular issues.” Xiao Ji
15 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
16 2006).
17 A nonpermanent resident, such as Butt, may have his
18 removal cancelled if, among other requirements, he
19 demonstrates that his “removal would result in exceptional
20 and extremely unusual hardship” to his United States citizen
21 or lawful permanent resident spouse, parent, or child.
22 8 U.S.C. § 1229b(b)(1)(D). In relevant part, the agency
3 1 denied relief based on Butt’s failure to show hardship to his
2 wife.
3 It would be an error of law if the agency ignored or
4 “seriously mischaracterize[d]” material facts, see Mendez v.
5 Holder, 566 F.3d 316, 323 (2d Cir. 2009). However, the record
6 reflects that the IJ and BIA properly applied existing
7 precedent and considered Butt’s evidence of hardship.
8 Hardship is a high standard that requires a showing that the
9 “qualifying relatives would suffer hardship that is
10 substantially different from, or beyond, that which would
11 normally be expected from the deportation of an alien with
12 close family members.” In re Monreal-Aguinaga, 23 I. & N.
13 Dec. 56, 65 (B.I.A. 2001); see also In re Andazola-Rivas, 23
14 I. & N. Dec. 319, 322 (B.I.A. 2002) (noting that exceptional
15 and extremely unusual hardship is a “very high standard”).
16 The agency considers, among other evidence, “the ages,
17 health, and circumstances of qualifying lawful permanent
18 resident and United States citizen relatives,” including how
19 a lower standard of living, diminished educational
20 opportunities, or adverse country conditions in the country
21 of removal might affect the relatives. In re Monreal-
22 Aguinaga, 23 I. & N. Dec. at 63; In re Andazola-Rivas, 23 I.
4 1 & N. Dec. at 323; see also In re Gonzalez Recinas, 23 I. & N.
2 Dec. 467 (B.I.A. 2002).
3 The agency applied that standard. It considered Butt’s
4 wife’s psychological records; her medical history, including
5 fertility treatments, and pain from a 2009 car accident; any
6 financial, cultural, and emotional hardship she would endure;
7 and the cumulative impact of the hardship factors. To the
8 extent that Butt argues that the agency gave too little weight
9 to certain evidence, the balancing of factors is beyond our
10 jurisdiction. See Argueta v. Holder, 617 F.3d 109, 113 (2d
11 Cir. 2010).
12 Butt merely “quarrels over the [exercise of discretion
13 and the] correctness of the factual findings reached by the
14 agency,” which we lack jurisdiction to review. Emokah v.
15 Mukasey, 523 F.3d 110, 119 (2d Cir. 2008) (internal quotation
16 marks omitted); see also Xiao Ji Chen, 471 F.3d at 329.
17 Asylum, Withholding of Removal and CAT
18 As an initial matter, Butt’s brief waives review of the
19 denial of asylum by failing to challenge the agency’s
20 timeliness finding. See Yueqing Zhang v. Gonzales, 426 F.3d
21 540, 541 n.1, 545 n.7 (2d Cir. 2005) (noting that petitioner
22 abandons issues and claims not raised in his brief). Absent
23 a constitutional claim or question of law, we lack
5 1 jurisdiction to review the timeliness determination. See 8
2 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). We therefore dismiss
3 the petition as to asylum.
4 As to the withholding and CAT claims, substantial
5 evidence supports the agency’s determinations. The remaining
6 claims are therefore denied. For withholding of removal,
7 “the applicant must establish that race, religion,
8 nationality, membership in a particular social group, or
9 political opinion was or will be at least one central reason
10 for persecuting the applicant.” 8 U.S.C.
11 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also Matter of C-T-
12 L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010) (applying “one
13 central reason” standard to withholding). Before the agency,
14 Butt’s claimed fear of persecution is premised on (1) imputed
15 anti-Pakistan political opinion because of his residence in
16 the United States and his marriage to a Bangladeshi woman,
17 and (2) membership in a particular social group of Pakistanis
18 married to Bangladeshis. Although he now attempts to frame
19 his claim as one based on his familial relationship to his
20 wife and their religious beliefs, those grounds were not
21 raised before the agency and are not properly before us. See
22 Lin Zhong v. U.S. Dep’t of Justice, 461 F.3d 101, 117-18 (2d
6 1 Cir. 2006) (requiring petitioner to exhaust all issues before
2 the BIA).
3 As the agency concluded, Butt did not establish a
4 likelihood of future harm on account of a protected ground.
5 The IJ acknowledged that Butt’s wife was attacked in 2006 in
6 Pakistan for not wearing a hijab, being an American, and being
7 of Bangladeshi-descent, among other reasons, but the harm to
8 Butt’s wife does not compel the conclusion that Butt himself
9 would more likely than not be persecuted on a protected
10 ground. See Melgar de Torres v. Reno, 191 F.3d 307, 313 n.2
11 (2d Cir. 1999) (“Although persecution of close family members
12 may support a well-founded fear of future persecution, it
13 does not form the basis for a finding of past persecution of
14 h[im].”). The country conditions evidence reflects that
15 Pakistan is plagued by extremist violence and repression of
16 women, and that it has long had a strained relationship with
17 Bangladesh. There is no evidence, however, that someone in
18 Butt’s circumstances would be targeted. See Jian Xing Huang
19 v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that
20 “[i]n the absence of solid support in the record” for a claim
21 of future persecution, an applicant’s “fear is speculative at
22 best.”).
7 1 Butt argues that the agency ignored evidence. However,
2 the IJ’s decision was detailed and included extensive
3 summaries of witness testimony and references to country
4 conditions. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169
5 (2d Cir. 2008) (The agency is not required to “expressly parse
6 or refute on the record each individual argument or piece of
7 evidence offered.” (internal quotation marks and citation
8 omitted)); see also Xiao Ji Chen, 471 F.3d at 336 n.17 (“[W]e
9 presume that an IJ has taken into account all of the evidence
10 before him, unless the record compellingly suggests
11 otherwise.”).
12 To receive protection under the CAT, an applicant must
13 “establish that it is more likely than not that he . . . would
14 be tortured if removed to the proposed country of removal.”
15 8 C.F.R. § 1208.16(c)(2). Unlike withholding of removal, CAT
16 relief does not require a nexus to a protected ground. See
17 id. “Torture is defined as any act by which severe pain or
18 suffering, whether physical or mental, is intentionally
19 inflicted on a person . . . at the instigation of or with the
20 consent or acquiescence of a public official or other person
21 acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1);
22 see also Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir.
23 2004). Butt’s CAT claim, like his withholding claim, fails
8 1 because there is no particularized evidence that he would be
2 tortured in Pakistan. See Mu Xiang Lin v. U.S. Dep’t of
3 Justice, 432 F.3d 156, 160 (2d Cir. 2005) (requiring
4 “particularized evidence” beyond general country conditions
5 to support a CAT claim). The general country conditions
6 evidence of extremist violence and anti-Bangladeshi sentiment
7 are insufficient to establish that Butt would be singled out
8 for torture. Id. Given the lack of particularized evidence
9 that he would be tortured or that the authorities would
10 acquiesce to his torture, the agency did not err by denying
11 CAT relief. See Savchuck v. Mukasey, 518 F.3d 119, 123 (2d
12 Cir. 2008) (“[A]n alien will never be able to show that he
13 faces a more likely than not chance of torture if one link in
14 the chain cannot be shown to be more likely than not to
15 occur.” (quoting In re J-F-F-, 23 I. & N. Dec. 912, 918 n.4
16 (A.G. 2006))).
17 For the foregoing reasons, the petition for review is
18 DISMISSED in part and DENIED in remaining part. As we have
19 completed our review, any stay of removal that the Court
20 previously granted in this petition is VACATED, and any
21 pending motion for a stay of removal in this petition is
22 DISMISSED as moot. Any pending request for oral argument in
23 this petition is DENIED in accordance with Federal Rule of
9 1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court 6