21

- 6137 Musthafa v. Garland BIA Navarro , IJ A 208 097 184 

### 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 APP**  **ENDIX 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 t**  **he Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **6 t**  **h da**  **y of D**  **e c**  **e m**  **b e**  **r , two thousand**  **twenty**

  4 ** two.** 5 6 **PRESENT:** 7 **RAYMOND J. LOHIER, JR. ,**  8 **WILLIAM J. NARDINI ,**  9 **EUNICE C. LEE ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **MOHAMED IRFAN SHAHUL HAMEED** 14 **MUSTHAFA ,**  15 **Petitioner ,**  16 17
**v. 21** 

**- 6137**  18 **NAC** 19 **MERRICK B. GARLAND ,**  **UNITED** 20 **STATES ATTORNEY GENERAL,** 21 **Respondent**

**.** 22

**_____________________________________** 23 24 **FOR PETITIONER :**  Visuvanathan Rudrakumaran , Esq., 25 Law Office of Visuvanathan 26 Rudrakumaran, New York, NY

. 27 282 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 1 Attorney General ; Anna E. Juarez, 2 Senior Litigation Counsel ; Evan P. 3 Schultz , Trial Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, D C. 7
UPON DUE CONSIDERATION of this petition for review of a 8
Board of Immigration Appeals (“BIA”) decision, it is hereby 9

ORDERED, ADJUDGED, AND DECREED that t he petitio n for review 10

is DENIED

. 11

Petitioner Mohamed Irfan Shahul Hameed Musthafa , a native 12

and citizen of S ri Lanka , seeks review of a February 11, 2021 , 13

decision of the BIA affirming a March 9, 2018 , decision of an 14
Immigration Judge (“IJ”) denying his application for asylu m 15

and withholding of removal

. 1 In re Mohamed Irfan Shahul 16

Hameed Musthafa , No. A 208 097 184 (B.I.A. Feb. 11, 2021 ), 17
aff’g No. A 208 097 184 (Immig r . Ct. N .Y. City Mar

. 9, 2018 ). 18
We assume the parties’ familiarity with the underlying facts 19
and procedural history. 20
We construe the Government’s motion for summary denial 21

as its brief because Musthafa has filed his brief , and we 22

1 The IJ granted withholding and deferral of removal under the Convention Against Torture, and the BIA did not disturb that ruling.3 review the petition on its merits. See United States 1

v. Davis , 598 F.3d 10, 13

– 14 (2d Cir. 2010 ) (holding that 2
summary denial is “a rare exception” limited to “truly 3
frivolous” appeals ) . Musthafa argues that the agency erred 4
in declining to consider a sylum and withholding of removal 5

b ased on religion and imputed political opinion and in 6
declining to remand to permit him to present new evidence of 7

increased tensions between Buddhists and Muslims

. 8

I. Asylum and Withholding of Removal 9
An applicant for asylum and withholding of removal has 10

the burden of showing past persecution or a fear of 11
persecution “ on account of ” a protected ground, “race, 12
religion, nationality, membership in a particular social 13
group, or political opinion.” 8 U.S.C. §§ 1101(a)(42), 14
1158(b)(1)(B)(i), 1231(b)(3)(A). 15
The crux of Musthafa’s arguments on appeal concern s 16
whether the BIA properly deemed his claims for asylum based 17
on religion and imputed political opinion waived. When the 18

BIA has held a claim waived, “this Court’s review is limited 19

to whether the BIA erred in deeming the argument waived.” 20

Prabhudial v. Holder , 780 F.3d 553, 555

– 56 (2d Cir. 2015). 214 “ [A] liens

— like all other parties to litigation

— are bound 1
by the concessions of freely retained counsel

. ” Hoodho v. 2

Holder , 558 F.3d 184, 192 (2d Cir. 2009). At h is hearing 3

before the IJ, Musthafa , through counsel, stated that he had 4
no evidence to support a religious persecution claim, that he 5
was not raising a political opinion claim, and that he wanted 6
to brief claims based on particular social groups. 7

Accordin gly, the BIA did not err in concluding that he failed 8
to raise religion and political opinion claims before the IJ. 9

Musthafa’s subsequent assertion in his written closing 10

submission that he merited relief based on imputed political 11
opinion did not relieve him of his prior concession

. Id. at 12
192 (noting that only “‘egregious circumstances’ can free an 13
alien from his attorney’s admissions”). On this record, the 14
BIA reasonably determin ed that Musthafa had abandoned claims 15
based on religion and political opinion. See Prabhudial , 780 16

F.3d at 555 ( “[W]e conclude that where the agency properly 17
applies its own waiver rule and refuses to consider the merits 18
of an argument that was not raised before the IJ, we will not 19
permit an end run around those discretionary agency 20
procedures by addressing the argument for the first time in 215 a petition for judicial review. ” ). 1

II. Motion to Remand 2

We review a motion to remand for consideration of new 3

evidence for abuse of discretion. Li Yong Cao v. Dep ’ t of 4

Justice , 421 F.3d 149, 157 (2d Cir. 2005). The agency has 5
broad discretion to deny a motion to remand grounded i n new 6
evidence and may do so, as relevant here, if the movant fails 7
to meet “the heavy burden of demonstrating a likelihood that 8
the new evidence presented would alter the result in the 9

case.” Id

. at 156 (quotation marks omitted). 10
Musthafa, who is Muslim, argues that evidence of Buddhist 11

attacks on Muslims that occurred in Sri Lanka after his 2018 12
merits hearing warranted remand because those attacks 13
escalated religious tensions in the country and Musthafa had 14
been harassed on account of his religion in the past. Bu t 15

Musthafa’s new evidence reflected that Buddhist militantism 16
against the Muslim minority began surging in 2009, long before 17
his 2018 merits hearing. On this record, the BIA did not 18
abuse its discretion by concluding that the events in 2019 19

represe nted a continuation of tensions between Muslims and 20

Buddhists and that remand was not warranted because Musthafa 216 could have, but did not, press a claim of religious 1
persecution before the IJ

. See Kaur v. BIA , 413 F.3d 232, 2

233 (2d Cir. 2005) (an abuse of discret ion may be found when 3

the BIA decision “provides no rational explanation, 4
inexplicably departs from established policies, is devoid of 5
any reasoning, or contains only summary or conclusory 6

statements”). 7
For the foregoing reasons, we construe the Government’s 8
motion for summary denial as its brief and DENY the petition 9

for revie w . All other pending motions and applications are 10
DENIED and stays VACATED. 11

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