2 1

- 6172 Subhani v. Garland BIA Loprest , IJ A 20 9 870 496 

### UNITED STATES COURT OF APPEAL **S 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** 1 **for the Second Circuit, held at the Thu**  **rgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **9 t**  **h da**  **y of J**  **a n**  **u a**  **r y**  **, two thousand twenty** 
**** 4 **three**

**.** 5 6 **PRESENT:** 7 **DEBRA ANN LIVINGSTON ,**  8 **Chief Judge ,**  9 **BETH ROBINSON,** 10 **MYRNA PÉREZ ,**  11 **Circuit Judges.** 12

**_____________________________________** 13 14 **JUNAID SUBHANI ,**  15 **Petitioner ,**  16 17
**v. 2**  **1**

**- 6172**  18 **NAC** 19 **MERRICK B. GARLAND ,**  **UNITED** 20 **STATES ATTORNEY GENERAL,** 21 **Respondent**

**.** 22

**_____________________________________** 23 24 25 **FOR PETITIONER :**  Judy Resnick , Esq. , Far Rockaway , 26 NY

. 27 282 **FOR RESPONDENT:** Brian M. Boynton , Acting Assistant 1 Attorney General ; Anthony P. 2 Nicastro , Assistant Director ; 3 Jenny C. Lee , Trial Attorne y , 4 Office of Immigration Litigation, 5 United States Department of 6 Justice, Washington, D C. 7

UPON DUE CONSIDERATION of th is petition for review of a 8
Board of Immigration Appeals (“BIA”) decision, it is hereby 9
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 10

is DENIED

. 11

Petitioner Junaid Subhani , a native and citizen o f 12

Pakistan , seeks review of a M arch 1 , 20 2 1 , decision of the 13
BIA affirming a November 13, 2018 , decision of an Immigration 14
Judge (“IJ”) denying hi s application for asylum , withholding 15

of removal , and protection under the Convention Against 16

Torture (“CAT”)

. In re Junaid Subhani , No. A 2 09 870 496 17

(B.I.A. M a r . 1 , 20 2 1 ), aff’g No. A 20 9 870 496 (Immig. Ct. 18
N.Y. City Nov. 13 , 2018 ). We assume the parties’ familiarity 19
with the underlying facts and procedural history

. 20
In lieu of filing a brief, the Government moves for 21
summary denial of Subhani’s petition for review. Summary 22
denial is a “rare exception to the completion of the appeal 23
process” and “ is available only if an appeal is truly 24

frivolous.” U nited States v. Davis , 598 F.3d 10, 13 (2d Cir. 253 2010) ( quotation marks omitted). A claim is frivolous if it 1

is based on an “inarguable legal conclusion” or “fanciful 2
factual allegation.” Pillay v. INS , 45 F.3d 14, 16 (2d Cir. 3

1995) (quoting Neitzke v. Williams , 490 U.S. 319, 32 5 (1989) )

. 4

However, “ n ot all unsuccessful claims are frivolous

. ” 5

Neitzke , 490 U.S. at 329. Subhani has filed his brief, so 6
rather than determine whether the petition exceeds the low 7

bar for non

- frivolousness, we construe the Government’s 8
motion as its brief and deny the petition on the merits. 9

We have reviewed both the IJ’s and BIA’s decisions “for 10

t he sake of completeness.” Wangchuck v. Dep’t of Homeland 11

Sec. , 448 F.3d 524, 528 (2d Cir. 2006). We review factual 12
findings under a substantial evidence standard and review 13
questions of law and the application of law to fact de novo. 14
Yanqin Weng v. Hold er , 562 F.3d 510, 513 (2d Cir. 2009)

. 15
“[T]he administrative findings of fact are conclusive unless 16
any reasonable adjudicator would be compelled to conclude to 17
the contrary.” 8 U.S.C. § 1252(b)(4)(B)

. 18
An applicant for asylum or withholding of removal must 19
establish past persecution or a fear of future persecution 20

and that a protected ground “was or will be at least one 21
central reason for persecuting the applicant

. ” 8 U.S.C. 224 § 1158(b)(1)(B)(i) ; see also id. § 1231(b)(3 )(A); 8 C.F.R. 1

§§ 1208.13(b), 1208.16(b)(1), (2) ; Quituizaca v. Garland , No. 2

19

- 3470, 52 F.4th 103 (2d Cir. Nov. 1, 2022). The applicant 3
must provide direct or circumstantial evidence of the 4
persecutor’s motives. INS v. Elias

- Zacarias , 502 U.S. 478, 5
483 (1992) (requiring “ some evidence” of motive, “direct or 6
circumstantial”). 7

We conclude that substantial evidence support s the 8
agency’s denial of asylum and withholding of removal on nexus 9
grounds. See Edimo

- Doualla v. Gonzales , 464 F.3d 276, 282

– 10
83 (2d Cir. 2006) (applying substantial evidence standard to 11
nexus determination). While the protected ground need not 12

be the sole reason for the harm, see Acharya v. Holder , 761 13
F.3d 289, 297

– 98 (2d Cir. 2014), it “cannot play a minor role 14

in the [noncitizen’ s ] past mistreatment or fears of future 15
mistreatment. That is, it cannot be incidental, tangential, 16
superficial, or subordinate to another reason for harm , ” In 17

re J

- B

- N

- & S

- M

- , 24 I. & N. Dec. 208, 214 (B.I.A. 2007). 18

“Whether th e requisite nexus exists depends on the views and 19
motives of the persecutor.” Paloka v. Holder , 762 F.3d 191, 20

196

– 97 (2d Cir. 2014) (quotation marks omitted). For 21
example, to succeed on a political opinion claim, an 225 “applicant must .

. . show, through di rect or circumstantial 1
evidence, that the persecutor’s motive to persecute arises 2
from the applicant’s political belief,” Yueqing Zhang v. 3

Gonzales , 426 F.3d 540, 545 (2d Cir. 2005) (citing Elias

4

Zacarias , 502 U.S. at 48 2 ), or an opinion imputed to the 5

app licant by the persecutor, regardless of whether or not 6
this imputation is accurate, s ee Chun Gao v. Gonzales , 424 7
F.3d 122, 129 (2d Cir. 2005). 8

Subhani claimed that a relative killed his father for 9
the family’s land and because his father supported a rival 10
political party, and that the same relative , along with his 11

associates , targeted Subhani and other family members for 12
contesting the land seizure and seeking justice for his 13

father’s murder. Subhani’s testimony and documentary 14
evidence do not compel a finding that the perpetrators 15
targeted him to overcome or punish him for an imputed 16
political opinion or membership in a particular social group 17

or famil y. See Yueqing Zhang , 426 F.3d at 545; see also 18

Siewe v. Gonzales , 480 F.3d 160, 167 (2d Cir. 2007) (“Where 19
there are two permissible views of the evidence, the 20
factfinder’s choice between them cannot be clearly erroneous. 21
Rather, a reviewing court must defer to that choice so long 226 as the deductions are not illogical or implausible.” 1
(quotation marks and citation omitted)). Instead, the IJ 2
could reasonably conclude that Subhani’s testimony indicated 3

that the individual s who targeted him and his family either 4

wanted the ir land, i.e., that t he y targeted Subhani’s family 5

to increase their own wealth , or wanted to evade prosecution 6
for killing his father

. See Ucelo

- Gomez v. Mukasey , 509 F.3d 7
70, 74 (2d Cir. 2007) (rejecting claim based on perceived 8
wealth and political opinion where putative persecutors had 9
no “motive other than increasing their own wealth at the 10
expense of the petitioners.” (quotation marks omitted)); 11
Melgar de Torres v. Reno , 191 F.3d 307, 314 (2d Cir. 199 9) 12
(“general crime conditions are not a stated ground” for 13
asylum). Subhani’s documentary evidence does not compel a 14
contrary result. His medical records and his father’s death 15

certificate do not touch on any potential reasons for his 16

harm , and letters f rom his mother and another relative 17

indicate that Subhani was attacked because of his efforts to 18

hold his father’s killers accountable under the law

. Without 19
more, the record does not compel a finding that a reason for 20

Subhani’s harm was an imputed political opinion or his 21
membership in a particular social group. See Yueqing Zhang , 227 426 F.3d at 545 ( requiring evidence of motive ); see also Jian 1
Hui Shao v. Mukasey , 546 F.3d 138, 15 7

– 5 8 (2d Cir. 2008) 2
(“[W]hen a petitioner bears th e burden of proof, his failure 3

to adduce evidence can itself constitute the ‘substantial 4
evidence’ necessary to support the agency’s challenged 5
decision.”). 6
The nexus finding is dispositive of asylum and 7
withholding of removal. See 8 U.S.C. §§ 1158(b)( 1)(B)(i), 8

1231(b)(3)(A); Quituizaca , 52 F.4th at 107

. Finally, Subhani 9

failed to exhaust his CAT claim before the BIA. See Lin 10
Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 123 (2d Cir. 11

2007) (“usually

. . . issues not raised to the BIA will not 12

be examined by the reviewing court”)

. 13
For the foregoing reasons, the Government’s motion for 14
summary denial is construed as its brief and the petition for 15

review is DENIED

. All other pending motions and applications 16
are DENIED and stays VACATED

. 17

FOR THE COURT: 18 Catherine O ’ Hagan Wolfe , 19 Clerk of Court 20