Mureed Hussain v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: May 3, 2023
• Docket: 20-1618
• Status: Unpublished

Opinion

20-1618 Mureed Hussain v. Garland BIA Lurye, IJ A208 418 739 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 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 May, two thousand twenty-three. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 GERARD E. LYNCH, 10 BETH ROBINSON, 11 Circuit Judges. 12 _____________________________________ 13 14 BILAL MUREED HUSSAIN, 15 Petitioner, 16 17 v. 20-1618 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Tobin Kohane, Esq., New York, NY. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Keith I. 28 McManus, Assistant Director; Scott 1 M. Marconda, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner Bilal Mureed Hussain, a native and citizen of

10 Pakistan, seeks review of an April 24, 2020, decision of the

11 BIA affirming a July 19, 2018, decision of an Immigration

12 Judge (“IJ”) denying his application for asylum, withholding

13 of removal, and relief under the Convention Against Torture

14 (“CAT”). In re Bilal Mureed Hussain, No. A 208-418-739

15 (B.I.A. Apr. 24, 2020), aff’g No. A 208-418-739 (Immig. Ct.

16 N.Y.C July 19, 2018). We assume the parties’ familiarity

17 with the underlying facts and procedural history.

18 We have considered both the IJ’s and BIA’s decisions “for

19 the sake of completeness.” Wangchuck v. Dep’t of Homeland

20 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We deny the petition

21 because Mureed Hussain has failed to exhaust or raise any

22 challenge to dispositive grounds for the agency’s decisions.

23 Under 8 U.S.C. § 1252(d)(1), we “may review a final order

2 1 of removal only if . . . the alien has exhausted all

2 administrative remedies available to the alien as of right.”

3 In addition to this statutory requirement that a petitioner

4 exhaust administrative remedies by appealing to the BIA, we

5 require a petitioner to raise to the BIA the specific issues

6 he seeks to raise in this Court. See Foster v. INS, 376 F.3d

7 75, 78 (2d Cir. 2004). While not jurisdictional, the issue

8 exhaustion requirement is “mandatory,” particularly where, as

9 here, the Government raises it as an affirmative defense.

10 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119–24 (2d

11 Cir. 2007).

12 Before the BIA, Hussain did not assert any challenges to

13 the IJ’s credibility findings. He argued that the IJ did not

14 acknowledge country conditions evidence that the Taliban

15 targets Shia Muslims. He also argued that the IJ failed to

16 consider the broader political context or that his family

17 could not relocate within Pakistan. 1 And he generally

18 asserted that he established a likelihood of torture. But

19 he did not address the credibility determination or allege

1The IJ did not make findings about Hussain’s ability to relocate in Pakistan. CAR at 41–50 (IJ Dec.); see 8 C.F.R. § 1208.13(b)(1)(i)(B). 3 1 any errors in individual findings. Accordingly, Hussain

2 failed to exhaust any challenge to the adverse credibility

3 determination. See Foster, 376 F.3d at 78. The adverse

4 credibility determination is dispositive of Hussain’s claims

5 for asylum, withholding of removal, and CAT relief because

6 all three claims are based on the same factual predicate—

7 Hussain’s alleged conversion to Shia Islam and attacks he

8 allegedly suffered as a result. See Paul v. Gonzales, 444

9 F.3d 148, 156–57 (2d Cir. 2006).

10 Hussain argues that general conditions in Pakistan

11 concerning the treatment of Shia Muslims alone satisfies his

12 burden to show a well-founded fear of future persecution.

13 But, while a well-founded fear of future persecution might in

14 some circumstances be established by showing membership in a

15 group against which the government has a pattern or practice

16 of persecution, see Hongsheng Leng v. Mukasey, 528 F.3d 135,

17 142 (2d Cir. 2008), the IJ’s adverse credibility

18 determination against Hussain extended not only to his

19 anecdotes of past persecution but implicitly also extended to

20 his testimony that he converted to Shia Islam, see Siewe v.

21 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“An IJ may, either

4 1 expressly or impliedly, rely on falsus in uno [the maxim

2 “false in one thing, false in everything”] to discredit

3 evidence that does not benefit from corroboration or

4 authentication independent of the petitioner’s own

5 credibility.” (emphasis in original)). 2 Accordingly,

6 Hussain’s failure to challenge the IJ’s adverse credibility

7 determination before the BIA is fatal to his argument that he

8 may show a well-founded fear of future persecution based

9 solely on country conditions evidence. For the foregoing

10 reasons, the petition for review is DENIED. All pending

11 motions and applications are DENIED and stays VACATED.

12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court

2Hussain additionally argues that the IJ exerted pressure to conclude his merits hearing early, which hastiness exacerbated the IJ’s misunderstanding of the facts of his case. But, again, Hussain did not contest any specific factual finding of the IJ before the BIA, meaning that no such a claim has been preserved for review. To the extent Hussain argues that the IJ violated his constitutional right to due process, he has failed to demonstrate how the IJ’s attempts to streamline his testimony during the merits hearing deprived him of “a full and fair opportunity to present [his] claims” or “otherwise deprived [him] of fundamental fairness.” Burger v. Gonzalez, 498 F.3d 131, 134 (2d Cir. 2007) (internal quotation marks and citations omitted). 5