Ishfaq v. Garland
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Opinion
22-6227 Ishfaq v. Garland BIA Christensen, IJ A208 017 943
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 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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 16th day of July, two thousand twenty- 4 four. 5 6 PRESENT: 7 JON O. NEWMAN, 8 RICHARD C. WESLEY, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 MUHAMMAD NADEEM ISHFAQ, 14 Petitioner, 15 16 v. 22-6227 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Mitchell Zwaik, Esq., Zwaik, Gilbert & 24 Associates, Ronkonkoma, NY. 1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; Anthony C. Payne, 3 Assistant Director; Neelam Ihsanullah, Trial 4 Attorney, Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Muhammad Nadeem Ishfaq, a native and citizen of Pakistan,
11 seeks review of an April 11, 2022, decision of the BIA affirming a May 16, 2019,
12 decision of an Immigration Judge (“IJ”) denying his application for asylum,
13 withholding of removal, and relief under the Convention Against Torture
14 (“CAT”). 1 In re Muhammad Nadeem Ishfaq, No. A208 017 943 (B.I.A. Apr. 11, 2019),
15 aff’g No. A208 017 943 (Immig. Ct. N.Y. City May 16, 2019). We assume the
16 parties’ familiarity with the underlying facts and procedural history.
17 Under the circumstances, we have considered both the IJ’s and BIA’s
1 Any issues relating to the agency’s denial of CAT relief have been waived because petitioner did not raise arguments regarding these applications in his brief. See Debique2- v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not adequately presented in an appellant’s brief.” (citation omitted)). 2 1 opinions “for the sake of completeness.” Wangchuk v. Dep’t of Homeland Sec., 448
2 F.3d 524, 528 (2d Cir. 2006). We review factual findings for substantial evidence
3 and questions of law and application of law to fact de novo. Yanqin Weng v.
4 Holder, 562 F.3d 510, 513 (2d Cir. 2009). “[T]he administrative findings of fact are
5 conclusive unless any reasonable adjudicator would be compelled to conclude to
6 the contrary.” 8 U.S.C. § 1252(b)(4)(B).
7 An asylum applicant has the burden to demonstrate past persecution or a
8 well-founded fear of future persecution “on account of race, religion, nationality,
9 membership in a particular social group, or political opinion” inflicted by either
10 the government or by private parties if the government is “unable or unwilling to
11 control such actions.” Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015) (quotation
12 marks omitted); see also Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (applying
13 unwilling-or-unable-to-control standard to withholding of removal); 8 U.S.C.
14 § 1101(a)(42); 8 C.F.R. § 1208.13(a). Under the unwilling-or-unable standard, “a
15 finding of persecution ordinarily requires a determination that government
16 authorities, if they did not actually perpetrate or incite the persecution, condoned
17 it or at least demonstrated a complete helplessness to protect the victims.” Singh
18 v. Garland, 11 F.4th 106, 114–15 (2d Cir. 2021) (quotation marks and citation
3 1 omitted).
2 The agency applied the correct legal standard in determining Ishfaq did not
3 meet his burden in proving the Pakistani government was unable or unwilling to
4 protect him. Ishfaq argues that the BIA erred by citing our decision in Scarlett v.
5 Barr, 957 F.3d 316 (2d Cir. 2020), for the notion that an applicant must show the
6 government condoned the actions or demonstrated a complete helplessness to
7 protect the victim. But this argument is misplaced because in Scarlett we rejected
8 the argument that this “complete helplessness” standard was a “new” or
9 “heightened” requirement. See 957 F.3d at 33 (“It is not new.”). Moreover, even
10 after Matter of A-B, 27 I. & N. Dec. 316 (B.I.A. 2018) (“A-B-I”), was vacated, we have
11 continued to apply this standard, which other circuits had imposed prior to A–B–
12 I. See Singh, 11 F.4th at 114–15 (quoting Galina v. INS, 213 F.3d 955, 958 (7th Cir.
13 2000)).
14 The agency did not err in determining that Ishfaq failed to prove Pakistani
15 authorities are unable or unwilling to protect him. See Siewe v. Gonzales, 480 F.3d
16 160, 168 (2d Cir. 2007) (“So long as there is a basis in the evidence for a challenged
17 inference, we do not question whether a different inference was available or more
18 likely.”). While evidence “that the police had taken no action beyond writing a
4 1 report” could be sufficient to meet the unable-or-unwilling standard, Ishfaq’s
2 testimony shows police did more than just take a report from him. Aliyev v.
3 Mukasey, 549 F.3d 111, 119 (2d Cir. 2008) (quotation marks omitted); accord Matter
4 of O–Z & I–Z, 22 I. & N. Dec. 23, 26 (B.I.A. 1998). Police interviewed him, took a
5 report, visited the scene of the crime to investigate, and, when Ishfaq followed up,
6 they informed him they were still looking into his case.
7 Ishfaq points to country conditions evidence showing police corruption, but
8 this is insufficient to meet his burden. See Singh, 11 F.4th at 116–17 (“General
9 country-conditions evidence does not on its own compel the conclusion that an
10 individual will be persecuted[.]”). While Ishfaq testified that police asked him for
11 money, there is no evidence supporting his assertion in his brief that police “were
12 unwilling to investigate his attack unless they were paid a bribe.” Petitioner’s Br.
13 at 20. Ishfaq did not testify to paying the police money, yet they still spent time
14 and resources investigating his claim by interviewing him, taking a report, and
15 visiting the crime scene to investigate. The lack of specific evidence showing that
16 police would not protect Ishfaq supports the agency’s denial of his asylum and
17 withholding of removal claim. See Singh, 11 F.4th at 117 (“Asylum and other
18 forms of immigration relief are individual remedies designed to avoid persecution
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