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.
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
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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
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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.
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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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
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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.”).
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
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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
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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