21-6172 Subhani v. Garland BIA Loprest, IJ A209 870 496 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 19th day of January, two thousand twenty- 5 three. 6 7 PRESENT: 8 DEBRA ANN LIVINGSTON, 9 Chief Judge, 10 BETH ROBINSON, 11 MYRNA PÉREZ, 12 Circuit Judges. 13 _____________________________________ 14 15 JUNAID SUBHANI, 16 Petitioner, 17 18 v. 21-6172 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 26 FOR PETITIONER: Judy Resnick, Esq., Far Rockaway, 27 NY. 28 1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 2 Attorney General; Anthony P. 3 Nicastro, Assistant Director; 4 Jenny C. Lee, Trial Attorney, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Junaid Subhani, a native and citizen of
13 Pakistan, seeks review of a March 1, 2021, decision of the
14 BIA affirming a November 13, 2018, decision of an Immigration
15 Judge (“IJ”) denying his application for asylum, withholding
16 of removal, and protection under the Convention Against
17 Torture (“CAT”). In re Junaid Subhani, No. A209 870 496
18 (B.I.A. Mar. 1, 2021), aff’g No. A209 870 496 (Immig. Ct.
19 N.Y. City Nov. 13, 2018). We assume the parties’ familiarity
20 with the underlying facts and procedural history.
21 In lieu of filing a brief, the Government moves for
22 summary denial of Subhani’s petition for review. Summary
23 denial is a “rare exception to the completion of the appeal
24 process” and “is available only if an appeal is truly
25 frivolous.” United States v. Davis, 598 F.3d 10, 13 (2d Cir.
2 1 2010) (quotation marks omitted). A claim is frivolous if it
2 is based on an “inarguable legal conclusion” or “fanciful
3 factual allegation.” Pillay v. INS, 45 F.3d 14, 16 (2d Cir.
4 1995) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
5 However, “not all unsuccessful claims are frivolous.”
6 Neitzke, 490 U.S. at 329. Subhani has filed his brief, so
7 rather than determine whether the petition exceeds the low
8 bar for non-frivolousness, we construe the Government’s
9 motion as its brief and deny the petition on the merits.
10 We have reviewed both the IJ’s and BIA’s decisions “for
11 the sake of completeness.” Wangchuck v. Dep’t of Homeland
12 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review factual
13 findings under a substantial evidence standard and review
14 questions of law and the application of law to fact de novo.
15 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
16 “[T]he administrative findings of fact are conclusive unless
17 any reasonable adjudicator would be compelled to conclude to
18 the contrary.” 8 U.S.C. § 1252(b)(4)(B).
19 An applicant for asylum or withholding of removal must
20 establish past persecution or a fear of future persecution
21 and that a protected ground “was or will be at least one
22 central reason for persecuting the applicant.” 8 U.S.C.
3 1 § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); 8 C.F.R.
2 §§ 1208.13(b), 1208.16(b)(1), (2); Quituizaca v. Garland, No.
3 19-3470, 52 F.4th 103 (2d Cir. Nov. 1, 2022). The applicant
4 must provide direct or circumstantial evidence of the
5 persecutor’s motives. INS v. Elias-Zacarias, 502 U.S. 478,
6 483 (1992) (requiring “some evidence” of motive, “direct or
7 circumstantial”).
8 We conclude that substantial evidence supports the
9 agency’s denial of asylum and withholding of removal on nexus
10 grounds. See Edimo-Doualla v. Gonzales, 464 F.3d 276, 282–
11 83 (2d Cir. 2006) (applying substantial evidence standard to
12 nexus determination). While the protected ground need not
13 be the sole reason for the harm, see Acharya v. Holder, 761
14 F.3d 289, 297–98 (2d Cir. 2014), it “cannot play a minor role
15 in the [noncitizen’s] past mistreatment or fears of future
16 mistreatment. That is, it cannot be incidental, tangential,
17 superficial, or subordinate to another reason for harm,” In
18 re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (B.I.A. 2007).
19 “Whether the requisite nexus exists depends on the views and
20 motives of the persecutor.” Paloka v. Holder, 762 F.3d 191,
21 196–97 (2d Cir. 2014) (quotation marks omitted). For
22 example, to succeed on a political opinion claim, an
4 1 “applicant must . . . show, through direct or circumstantial
2 evidence, that the persecutor’s motive to persecute arises
3 from the applicant’s political belief,” Yueqing Zhang v.
4 Gonzales, 426 F.3d 540, 545 (2d Cir. 2005) (citing Elias-
5 Zacarias, 502 U.S. at 482), or an opinion imputed to the
6 applicant by the persecutor, regardless of whether or not
7 this imputation is accurate, see Chun Gao v. Gonzales, 424
8 F.3d 122, 129 (2d Cir. 2005).
9 Subhani claimed that a relative killed his father for
10 the family’s land and because his father supported a rival
11 political party, and that the same relative, along with his
12 associates, targeted Subhani and other family members for
13 contesting the land seizure and seeking justice for his
14 father’s murder. Subhani’s testimony and documentary
15 evidence do not compel a finding that the perpetrators
16 targeted him to overcome or punish him for an imputed
17 political opinion or membership in a particular social group
18 or family. See Yueqing Zhang, 426 F.3d at 545; see also
19 Siewe v. Gonzales, 480 F.3d 160
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21-6172 Subhani v. Garland BIA Loprest, IJ A209 870 496 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 19th day of January, two thousand twenty- 5 three. 6 7 PRESENT: 8 DEBRA ANN LIVINGSTON, 9 Chief Judge, 10 BETH ROBINSON, 11 MYRNA PÉREZ, 12 Circuit Judges. 13 _____________________________________ 14 15 JUNAID SUBHANI, 16 Petitioner, 17 18 v. 21-6172 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 26 FOR PETITIONER: Judy Resnick, Esq., Far Rockaway, 27 NY. 28 1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 2 Attorney General; Anthony P. 3 Nicastro, Assistant Director; 4 Jenny C. Lee, Trial Attorney, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Junaid Subhani, a native and citizen of
13 Pakistan, seeks review of a March 1, 2021, decision of the
14 BIA affirming a November 13, 2018, decision of an Immigration
15 Judge (“IJ”) denying his application for asylum, withholding
16 of removal, and protection under the Convention Against
17 Torture (“CAT”). In re Junaid Subhani, No. A209 870 496
18 (B.I.A. Mar. 1, 2021), aff’g No. A209 870 496 (Immig. Ct.
19 N.Y. City Nov. 13, 2018). We assume the parties’ familiarity
20 with the underlying facts and procedural history.
21 In lieu of filing a brief, the Government moves for
22 summary denial of Subhani’s petition for review. Summary
23 denial is a “rare exception to the completion of the appeal
24 process” and “is available only if an appeal is truly
25 frivolous.” United States v. Davis, 598 F.3d 10, 13 (2d Cir.
2 1 2010) (quotation marks omitted). A claim is frivolous if it
2 is based on an “inarguable legal conclusion” or “fanciful
3 factual allegation.” Pillay v. INS, 45 F.3d 14, 16 (2d Cir.
4 1995) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
5 However, “not all unsuccessful claims are frivolous.”
6 Neitzke, 490 U.S. at 329. Subhani has filed his brief, so
7 rather than determine whether the petition exceeds the low
8 bar for non-frivolousness, we construe the Government’s
9 motion as its brief and deny the petition on the merits.
10 We have reviewed both the IJ’s and BIA’s decisions “for
11 the sake of completeness.” Wangchuck v. Dep’t of Homeland
12 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review factual
13 findings under a substantial evidence standard and review
14 questions of law and the application of law to fact de novo.
15 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
16 “[T]he administrative findings of fact are conclusive unless
17 any reasonable adjudicator would be compelled to conclude to
18 the contrary.” 8 U.S.C. § 1252(b)(4)(B).
19 An applicant for asylum or withholding of removal must
20 establish past persecution or a fear of future persecution
21 and that a protected ground “was or will be at least one
22 central reason for persecuting the applicant.” 8 U.S.C.
3 1 § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); 8 C.F.R.
2 §§ 1208.13(b), 1208.16(b)(1), (2); Quituizaca v. Garland, No.
3 19-3470, 52 F.4th 103 (2d Cir. Nov. 1, 2022). The applicant
4 must provide direct or circumstantial evidence of the
5 persecutor’s motives. INS v. Elias-Zacarias, 502 U.S. 478,
6 483 (1992) (requiring “some evidence” of motive, “direct or
7 circumstantial”).
8 We conclude that substantial evidence supports the
9 agency’s denial of asylum and withholding of removal on nexus
10 grounds. See Edimo-Doualla v. Gonzales, 464 F.3d 276, 282–
11 83 (2d Cir. 2006) (applying substantial evidence standard to
12 nexus determination). While the protected ground need not
13 be the sole reason for the harm, see Acharya v. Holder, 761
14 F.3d 289, 297–98 (2d Cir. 2014), it “cannot play a minor role
15 in the [noncitizen’s] past mistreatment or fears of future
16 mistreatment. That is, it cannot be incidental, tangential,
17 superficial, or subordinate to another reason for harm,” In
18 re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (B.I.A. 2007).
19 “Whether the requisite nexus exists depends on the views and
20 motives of the persecutor.” Paloka v. Holder, 762 F.3d 191,
21 196–97 (2d Cir. 2014) (quotation marks omitted). For
22 example, to succeed on a political opinion claim, an
4 1 “applicant must . . . show, through direct or circumstantial
2 evidence, that the persecutor’s motive to persecute arises
3 from the applicant’s political belief,” Yueqing Zhang v.
4 Gonzales, 426 F.3d 540, 545 (2d Cir. 2005) (citing Elias-
5 Zacarias, 502 U.S. at 482), or an opinion imputed to the
6 applicant by the persecutor, regardless of whether or not
7 this imputation is accurate, see Chun Gao v. Gonzales, 424
8 F.3d 122, 129 (2d Cir. 2005).
9 Subhani claimed that a relative killed his father for
10 the family’s land and because his father supported a rival
11 political party, and that the same relative, along with his
12 associates, targeted Subhani and other family members for
13 contesting the land seizure and seeking justice for his
14 father’s murder. Subhani’s testimony and documentary
15 evidence do not compel a finding that the perpetrators
16 targeted him to overcome or punish him for an imputed
17 political opinion or membership in a particular social group
18 or family. See Yueqing Zhang, 426 F.3d at 545; see also
19 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where
20 there are two permissible views of the evidence, the
21 factfinder’s choice between them cannot be clearly erroneous.
22 Rather, a reviewing court must defer to that choice so long
5 1 as the deductions are not illogical or implausible.”
2 (quotation marks and citation omitted)). Instead, the IJ
3 could reasonably conclude that Subhani’s testimony indicated
4 that the individuals who targeted him and his family either
5 wanted their land, i.e., that they targeted Subhani’s family
6 to increase their own wealth, or wanted to evade prosecution
7 for killing his father. See Ucelo-Gomez v. Mukasey, 509 F.3d
8 70, 74 (2d Cir. 2007) (rejecting claim based on perceived
9 wealth and political opinion where putative persecutors had
10 no “motive other than increasing their own wealth at the
11 expense of the petitioners.” (quotation marks omitted));
12 Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999)
13 (“general crime conditions are not a stated ground” for
14 asylum). Subhani’s documentary evidence does not compel a
15 contrary result. His medical records and his father’s death
16 certificate do not touch on any potential reasons for his
17 harm, and letters from his mother and another relative
18 indicate that Subhani was attacked because of his efforts to
19 hold his father’s killers accountable under the law. Without
20 more, the record does not compel a finding that a reason for
21 Subhani’s harm was an imputed political opinion or his
22 membership in a particular social group. See Yueqing Zhang,
6 1 426 F.3d at 545 (requiring evidence of motive); see also Jian
2 Hui Shao v. Mukasey, 546 F.3d 138, 157–58 (2d Cir. 2008)
3 (“[W]hen a petitioner bears the burden of proof, his failure
4 to adduce evidence can itself constitute the ‘substantial
5 evidence’ necessary to support the agency’s challenged
6 decision.”).
7 The nexus finding is dispositive of asylum and
8 withholding of removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i),
9 1231(b)(3)(A); Quituizaca, 52 F.4th at 107. Finally, Subhani
10 failed to exhaust his CAT claim before the BIA. See Lin
11 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir.
12 2007) (“usually . . . issues not raised to the BIA will not
13 be examined by the reviewing court”).
14 For the foregoing reasons, the Government’s motion for
15 summary denial is construed as its brief and the petition for
16 review is DENIED. All other pending motions and applications
17 are DENIED and stays VACATED.
18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court