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 

New York, on the 19th 4 day of January, two thousand twenty5 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
2

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. 
3

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. 
4

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 
5

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 Elias5 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 
6

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, 
7

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