Faruk v. Sessions
This text of Faruk v. Sessions (Faruk v. Sessions) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
17-1667 Faruk v. Sessions BIA A087 998 865 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 3rd day of August, two thousand eighteen. 5 6 PRESENT: 7 BARRINGTON D. PARKER, 8 REENA RAGGI, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 OMAR FARUK, 14 Petitioner, 15 16 v. 17-1667 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Omar Faruk, pro se, Brooklyn, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Anthony P. 27 Nicastro, Assistant Director; Dana 28 M. Camilleri, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 Justice, 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 DENIED.
5 Petitioner Omar Faruk, a native and citizen of
6 Bangladesh, seeks review of the BIA’s denial of his motion to
7 reopen. See In re Omar Faruk, No. A 087 998 865 (B.I.A. May
8 1, 2017).
9 In lieu of filing a brief, the Government moves for
10 summary denial of Faruk’s petition for review which is
11 warranted only if the petition is frivolous. See Pillay v.
12 INS, 45 F.3d 14, 17 (2d Cir. 1995). Because Faruk has filed
13 his merits brief, we need not resolve whether his petition is
14 frivolous; rather, we treat the Government’s motion as a
15 response to that brief and deny the petition. In so doing,
16 we assume the parties’ familiarity with the underlying facts
17 and procedural history in this case.
18 Faruk argues that the BIA erred in not reviewing the
19 immigration judge’s (“IJ’s”) adverse credibility
20 determination, on the basis of which the IJ denied his
21 underlying applications for asylum, withholding of removal, 2 1 and relief under the Convention Against Torture (“CAT”).
2 But Faruk cannot now challenge that determination because
3 his petition is timely only as to the BIA’s denial of his
4 motion to reopen. See Kaur v. BIA, 413 F.3d 232, 233 (2d
5 Cir. 2005) (noting that we are precluded from reviewing
6 underlying removal order on petition for review of denial
7 of motion to reopen).
8 To the extent that Faruk challenges the denial of
9 reopening, we review that denial for abuse of discretion; see
10 i.d., which we do not identify here. It is undisputed that
11 Faruk’s 2016 motion to reopen was untimely because it was
12 filed more than two years after the BIA’s original decision
13 affirming the IJ’s denial of asylum, withholding of removal,
14 and CAT relief. See 8 U.S.C. § 1229a(c)(7)(C)(i) (setting
15 90-day deadline for motion to reopen); 8 C.F.R.
16 § 1003.2(c)(2) (same).
17 In urging otherwise, Faruk relies on evidence of changed
18 country conditions in Bangladesh. See 8 U.S.C.
19 § 1229a(c)(7)(C)(ii) (stating that time limitation does not
20 apply if reopening is “based on changed country conditions
21 arising in the country of nationality . . . if such evidence 3 1 is material and was not available and would not have been
2 discovered or presented at the previous proceedings”); see
3 also 8 C.F.R. §1003.2©(3)(ii). Specifically, Faruk asserts
4 that the Awami League, which he claims persecuted him in the
5 past based on his support of the Bangladesh Nationalist Party,
6 was emboldened by its 2014 electoral victory and that, in
7 2015 and 2016, its members were looking for Faruk and harmed
8 and threated his family.
9 The BIA did not err in determining that the alleged
10 changed conditions were not material; see 8 U.S.C.
11 § 1229a(c)(7)(C)(ii), given the agency’s prior determination,
12 upheld by this court, that Faruk’s claim of Bangladesh
13 Nationalist Party membership was not credible. See Qin Weng
14 Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) (reasoning
15 that BIA may rely on underlying adverse credibility
16 determination to deny motion to reopen); see also Faruk v.
17 Lynch, 660 F. App’x 82, 83-84 (2d Cir. 2016) (denying Faruk’s
18 petition challenging adverse credibility determination).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, the Government’s
21 motion for summary denial and Faruk’s motion for a stay of 4 1 removal are DENIED as moot. Any pending request for oral
2 argument in this petition is DENIED in accordance with Federal
3 Rule of Appellate Procedure 34(a)(2), and Second Circuit
4 Local Rule 34.1(b).
5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court
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