Salhan v. Garland

Opinion

20-769 Salhan v. Garland BIA

A206 036 016

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 10th day of March, two thousand twenty-two. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 ROSEMARY S. POOLER, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 JATINDER SALHAN, 14 Petitioner, 15 16 v. 20-769 17 NAC 18 MERRICK B. GARLAND, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jaspreet Singh, Jackson Heights, 24 NY. 25 26 FOR RESPONDENT: [VACANT], Assistant Attorney 27 General; Julie M. Iversen, Senior 28 Litigation Counsel, Jeffrey R. 29 Meyer, Attorney, Office of

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1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.

4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Jatinder Salhan, a native and citizen of 9 India, seeks review of a February 5, 2020, decision of the 10 BIA denying his motion to reopen. In re Jatinder Salhan, No. 11 A 206 036 016 (B.I.A. Feb. 5, 2020). We assume the parties’ 12 familiarity with the underlying facts and procedural history. 13 In lieu of filing a brief, the Government moves for 14 summary denial of Salhan’s petition for review. Rather than 15 determine if the petition is frivolous as required for summary 16 denial, see Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995), we 17 construe the Government’s motion as its brief and deny the 18 petition on the merits. 19 We review the denial of a motion to reopen for abuse of 20 discretion and the BIA’s determination of country conditions 21 for substantial evidence. See Jian Hui Shao v. Mukasey, 546 22 F.3d 138, 168-69 (2d Cir. 2008). In his motion to reopen, 23 Salhan asserted that Congress Party members and

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1 Bharatiya Janata Party (“BJP”) workers went to his family’s 2 home in India to learn his whereabouts and they beat his 3 father on account of Salhan’s affiliation with the Akali Dal 4 Mann Party. He documented this claim with his own written 5 statement, an affidavit from his uncle, and background 6 evidence of conditions in India. 7 It is undisputed that Salhan’s 2019 motion was untimely 8 because he filed it more than two years after his removal 9 order became final in 2017. See 8 U.S.C. 10 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although this 11 time limitation does not apply if reopening is sought to apply 12 for asylum and the motion “is based on changed country 13 conditions arising in the country of nationality” that are 14 material to the applicant’s asylum claim, 8 U.S.C. 15 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3), Salhan did not 16 satisfy this exception. 17 “[T]o prevail on a motion to reopen alleging changed 18 country conditions where the persecution claim was previously 19 denied based on an adverse credibility finding . . . , the 20 [movant] must either overcome the prior determination or show 21 that the new claim is independent of the evidence that was

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1 found to be not credible.” Matter of F-S-N-, 28 I. & N. Dec. 2 1, 3 (BIA 2020); see also Kaur v. BIA, 413 F.3d 232, 234 (2d 3 Cir. 2005) (“[E]vidence submitted by petitioner in support 4 of . . . motion was not ‘material’ because it did not rebut 5 the adverse credibility finding that provided the basis for 6 the IJ’s denial of petitioner’s underlying asylum 7 application.”). The BIA did not err in concluding that 8 Salhan’s new evidence failed to overcome the underlying 9 adverse credibility determination. That evidence did not 10 address the findings that formed the basis for the adverse 11 credibility determination—i.e., Salhan’s vague recollection 12 of his activities on behalf of the Alkali Dal Mann Party and 13 his evasive and nonresponsive statements during his 14 individual hearing. See Kaur, 413 F.3d at 234; Matter of F- 15 S-N-, 28 I. & N. Dec. at 3. Moreover, Salhan’s country 16 conditions evidence, which included a State Department report 17 and news articles, did not directly address violence between 18 political parties or conditions in his home state of Punjab 19 for members of his political party. Absent evidence to 20 overcome the underlying adverse credibility determination, 21 the BIA did not abuse its discretion in denying Salhan’s

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1 untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i); 2 8 C.F.R. § 1003.2(c)(2); Kaur, 413 F.3d at 234. 3 For the foregoing reasons, the petition for review is 4 DENIED. All pending motions and applications are DENIED and 5 stays VACATED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court