21-6137

Musthafa v. Garland

BIA

Navarro, IJ

A208 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 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 16th 4 day of December, two thousand twenty5 two.

6

7 PRESENT:

8 RAYMOND J. LOHIER, JR.,

9 WILLIAM J. NARDINI,

10 EUNICE C. LEE,

11 Circuit Judges.

12 _____________________________________

13

14 MOHAMED IRFAN SHAHUL HAMEED 

15 MUSTHAFA,

16 Petitioner,

17

18 v. 21-6137

19 NAC

20 MERRICK B. GARLAND, UNITED 

21 STATES ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________

24

25 FOR PETITIONER: Visuvanathan Rudrakumaran,Esq., 

26 Law Office of Visuvanathan 

27 Rudrakumaran, New York, NY.

28
2

1 FOR RESPONDENT: Brian Boynton, Acting Assistant

2 Attorney General; Anna E. Juarez, 

3 Senior Litigation Counsel; Evan P. 

4 Schultz, Trial Attorney, Office of 

5 Immigration Litigation, United 

6 States Department of Justice, 

7 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 Mohamed Irfan Shahul Hameed Musthafa, a native 

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

14 decision of the BIA affirming a March 9, 2018, decision of an 

15 Immigration Judge (“IJ”) denying his application for asylum

16 and withholding of removal.1 In re Mohamed Irfan Shahul 

17 Hameed Musthafa, No. A 208 097 184 (B.I.A. Feb. 11, 2021), 

18 aff’g No. A 208 097 184 (Immigr. Ct. N.Y. City Mar. 9, 2018). 

19 We assume the parties’ familiarity with the underlying facts 

20 and procedural history.

21 We construe the Government’s motion for summary denial 

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

1 The IJ granted withholding and deferral of removal under the 

Convention Against Torture, and the BIA did not disturb that 

ruling. 
3

1 review the petition on its merits. See United States 

2 v. Davis, 598 F.3d 10, 13–14 (2d Cir. 2010) (holding that 

3 summary denial is “a rare exception” limited to “truly 

4 frivolous” appeals). Musthafa argues that the agency erred 

5 in declining to consider asylum and withholding of removal 

6 based on religion and imputed political opinion and in 

7 declining to remand to permit him to present new evidence of

8 increased tensions between Buddhists and Muslims.

9 I. Asylum and Withholding of Removal

10 An applicant for asylum and withholding of removal has 

11 the burden of showing past persecution or a fear of 

12 persecution “on account of” a protected ground, “race, 

13 religion, nationality, membership in a particular social 

14 group, or political opinion.” 8 U.S.C. §§ 1101(a)(42), 

15 1158(b)(1)(B)(i), 1231(b)(3)(A). 

16 The crux of Musthafa’s arguments on appeal concerns

17 whether the BIA properly deemed his claims for asylum based 

18 on religion and imputed political opinion waived. When the 

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

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

21 Prabhudial v. Holder, 780 F.3d 553, 555–56 (2d Cir. 2015).
4

1 “[A]liens—like all other parties to litigation—are bound 

2 by the concessions of freely retained counsel.” Hoodho v. 

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

4 before the IJ, Musthafa, through counsel, stated that he had 

5 no evidence to support a religious persecution claim, that he 

6 was not raising a political opinion claim, and that he wanted 

7 to brief claims based on particular social groups. 

8 Accordingly, the BIA did not err in concluding that he failed 

9 to raise religion and political opinion claims before the IJ. 

10 Musthafa’s subsequent assertion in his written closing 

11 submission that he merited relief based on imputed political 

12 opinion did not relieve him of his prior concession. Id. at 

13 192 (noting that only “‘egregious circumstances’ can free an 

14 alien from his attorney’s admissions”). On this record, the 

15 BIA reasonably determined that Musthafa had abandoned claims

16 based on religion and political opinion. See Prabhudial, 780 

17 F.3d at 555 (“[W]e conclude that where the agency properly 

18 applies its own waiver rule and refuses to consider the merits 

19 of an argument that was not raised before the IJ, we will not 

20 permit an end run around those discretionary agency 

21 procedures by addressing the argument for the first time in 
5

1 a petition for judicial review.”). 

2 II. Motion to Remand

3 We review a motion to remand for consideration of new 

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

5 Justice, 421 F.3d 149, 157 (2d Cir. 2005). The agency has 

6 broad discretion to deny a motion to remand grounded in new 

7 evidence and may do so, as relevant here, if the movant fails 

8 to meet “the heavy burden of demonstrating a likelihood that 

9 the new evidence presented would alter the result in the 

10 case.” Id. at 156 (quotation marks omitted). 

11 Musthafa, who is Muslim, argues that evidence of Buddhist 

12 attacks on Muslims that occurred in Sri Lanka after his 2018 

13 merits hearing warranted remand because those attacks 

14 escalated religious tensions in the country and Musthafa had 

15 been harassed on account of his religion in the past. But 

16 Musthafa’s new evidence reflected that Buddhist militantism 

17 against the Muslim minority began surging in 2009, long before 

18 his 2018 merits hearing. On this record, the BIA did not 

19 abuse its discretion by concluding that the events in 2019 

20 represented a continuation of tensions between Muslims and 

21 Buddhists and that remand was not warranted because Musthafa 
6

1 could have, but did not, press a claim of religious 

2 persecution before the IJ. See Kaur v. BIA, 413 F.3d 232, 

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

4 the BIA decision “provides no rational explanation, 

5 inexplicably departs from established policies, is devoid of 

6 any reasoning, or contains only summary or conclusory 

7 statements”). 

8 For the foregoing reasons, we construe the Government’s 

9 motion for summary denial as its brief and DENY the petition 

10 for review. All other pending motions and applications are 

11 DENIED and stays VACATED.

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe,

14 Clerk of Court