Khan v. Garland

Opinion

20-3350 Khan v. Garland BIA Hochul, IJ A213 166 408

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of August, two thousand twenty-three.

PRESENT: STEVEN J. MENASHI, EUNICE C. LEE, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

ALI REZA KHAN, Petitioner,

v. 20-3350 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., New York, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Justin Markel, Nancy E. Friedman, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Ali Reza Khan, a native and citizen of Bangladesh, seeks review

of a September 23, 2020 decision of the BIA affirming an April 16, 2020 decision of

an Immigration Judge (“IJ”) denying his application for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). In re Ali Reza

Khan, No. A 213 166 408 (B.I.A. Sep. 23, 2020), aff’g No. A 213 166 408 (Immigr. Ct.

Richwood, LA Apr. 16, 2020). We assume the parties’ familiarity with the

underlying facts and procedural history.

I. Venue

The U.S. Court of Appeals for the Fifth Circuit is the proper venue for this

case. Although the proceedings were conducted through videoconferencing by

an IJ in Buffalo, New York, Khan was detained in Louisiana throughout the 2 proceedings and the charging documents and hearing notices reflect Louisiana as

the location of the proceedings. Accordingly, venue remained in Louisiana. See

Sarr v. Garland, 50 F.4th 326, 329–35 (2d Cir. 2022) (addressing 8 U.S.C.

§ 1252(b)(2)). Nevertheless, venue “does not bear on our jurisdiction.” Id. at 333.

Because the case is fully briefed in this Court and there is no significant difference

in the relevant case law, we retain the case and deny the petition on the merits.

II. Merits

We need not determine whether Second Circuit or Fifth Circuit law governs

the issues here because there is not a significant distinction between the circuits on

the dispositive issues. We have reviewed the IJ’s decision as modified by the BIA.

See Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018) (holding that the court has

“authority to review only the decision of the BIA, not the IJ, unless the IJ’s decision

influenced the BIA’s decision”); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

522 (2d Cir. 2005) (reviewing IJ’s decision as modified by the BIA). The applicable

standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he

administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.”); Singh, 880 F.3d at 224 (“We

3 review an immigration court’s findings of fact for substantial evidence.”); Castro

v. Holder, 597 F.3d 93, 99 (2d Cir. 2010) (same).

“To establish eligibility for asylum, an applicant must show that he ‘has

suffered past persecution’ or ‘has a well-founded fear of future persecution.’” Lecaj

v. Holder, 616 F.3d 111, 115 (2d Cir. 2010) (quoting 8 C.F.R. § 1208.13(b)). To

constitute persecution, the harm suffered or feared must be by the government or

by private actors that the government is unable or unwilling to control. See Singh

v. Garland, 11 F.4th 106, 114–15 (2d Cir. 2021) (“Under the unwilling-or-unable

standard, a finding of persecution ordinarily requires a determination that

government authorities, if they did not actually perpetrate or incite the

persecution, condoned it or at least demonstrated a complete helplessness to

protect the victims.” (quotation marks omitted)); Bertrand v. Garland, 36 F.4th 627,

631–32 (5th Cir. 2022) (“Where private actors are concerned, the applicant must

show that the government condoned the private violence or at least demonstrated

a complete helplessness to protect the applicant.” (quotation marks and brackets

omitted)).

Khan asserted that members of the Awami League attacked him twice

because he supported the Liberal Democratic Party (“LDP”) of Bangladesh. The

4 agency did not err in concluding that Khan failed to satisfy his burden of

demonstrating that the government of Bangladesh was or would be unable or

unwilling to protect him. 1 The fact that his attackers were Awami League

members does not alone establish that they were government actors even if the

Awami League was the party in power at that time. See Singh, 11 F.4th at 115

(“An applicant’s allegation that he was persecuted by members of a political

party—even one that is in power nationally . . . —does not establish that the

applicant was persecuted by the government. Members of a political party are

not the government; for mistreatment inflicted by party members to amount to

persecution, an applicant must show that the government was unwilling or unable

to control the attackers.”); Scarlett v. Barr, 957 F.3d 316, 331 (2d Cir. 2020) (“[A]

close relationship between government officials and private persons may be

probative of the formers’ unwillingness or inability to control the latter, but the

relationship alone does not transform the private persons into government

actors.”); Singh v. Whitaker, 751 F. App’x 565, 567 (5th Cir. 2019) (“Singh’s bare

assertion that the BJP controlled all of India as the country’s ruling party is

1 Because this was the sole basis for the BIA’s decision, we do not reach Khan’s other arguments. See Singh, 880 F.3d at 224; Xue Hong Yang, 426 F.3d at 522. 5 insufficient to demonstrate that the government was the persecutor or sponsored

the persecution.”).

Accordingly, Khan had to demonstrate that the authorities were unable and

unwilling to assist him. Khan said he did not report the first attack to the police

because LDP leaders advised against it. He said he and his father reported the

second attack, but the police refused to act because the Awami League was in

power and warned that the police would file a case against them if they

complained about the Awami League again. However, as the IJ pointed out,

Khan did not corroborate this report with a statement from his father. See 8 U.S.C.

§ 1158(b)(1)(B)(ii) (“Where the trier of fact determines that the applicant should

provide evidence that corroborates otherwise credible testimony, such evidence

must be provided unless the applicant does not have the evidence and cannot

reasonably obtain the evidence.”). The record does not compel us to find that

such evidence was not available. See id. § 1252(b)(4) (“No court shall reverse a

determination made by a trier of fact with respect to the availability of

corroborating evidence . . . unless . . . a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable.”). The IJ was not

compelled to accept Khan’s explanation that his father was in hiding because he

6 did not previously mention that fact, nor was it mentioned in his mother’s letter.

As the BIA noted, Khan alleged no further attempts to obtain assistance or

protection.

Although “a failure to ask for police help is not enough, by itself, to

preclude” a finding that the government would be unwilling to protect,

Quintanilla-Mejia v. Garland, 3 F.4th 569, 593 (2d Cir. 2021) (quotation marks

omitted), Khan has not “reinforced” his claims with objective evidence such as

“articles from newspapers and other sources that report discrimination by

[government] authorities,” Pavlova v. INS, 441 F.3d 82, 92 (2d Cir. 2006). Given

Khan’s burden to establish that the government condoned or was completely

helpless to protect him, the agency reasonably concluded that his one

uncorroborated report to the local police was insufficient to meet his burden for

asylum or withholding of removal. See Scarlett, 957 F.3d at 331 (noting that “the

unwilling-or-unable standard requires an applicant to show more than

government failure to act on a particular report of an individual crime, or difficulty

controlling private behavior” (alterations adopted and quotations omitted));

Bertrand, 36 F.4th at 631–32.

7 Khan has not separately developed an argument for CAT relief; accordingly,

we deem that claim abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545

n.7 (2d Cir. 2005). Moreover, the agency’s decision as to asylum and withholding

of removal is dispositive because Khan’s CAT claims rested on the same factual

basis. See Lecaj, 616 F.3d at 119–20 (holding that an applicant who fails to meet

the standard for asylum “necessarily” fails to meet the higher standard for

withholding of removal and CAT relief).

For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

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