08 -26 06 -ag

Bhu iyan v. Holder BIA Bukszpan, IJ A078 517 743 

### UNITE D STATES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY O RDE R

R ULI NGS BY SU MMA RY ORD ER DO N OT H AVE P REC EDE NTI AL EFF ECT . C ITA TIO N T O ASU MMA RY ORD ER FIL ED ON OR AFT ER J

ANUARY 1, 200 7, IS PE RMI TTE D AND IS GOV ERN ED BY FEDE RAL R ULE OF APPE LLA TE P ROC EDU RE 32. 1 AND TH IS COU RT ’ S L OCA L R ULE 32. 1.1 . WHEN CI TIN G ASU MMA RY ORD ER IN A D OCU MEN T F ILE D W ITH TH IS COU RT , A PAR TY MUS T C ITE EI THE R T HE FEDE RAL APPE NDI X O R AN E LEC TRO NIC DA TAB ASE ( WIT H T HE NOT ATI ON “ SUMMAR Y O RDE R ”). A PA RTY CI TIN G ASU MMA RY ORD ER MU ST SE RVE A COP Y O F I T O N ANY PAR TY NOT RE PRE SEN TED BY COU NSE L . 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 11 day of January, two thousand ten. th 5 6 PRESENT: 7 GUIDO CALABRESI, 8 BARRINGTON D. PARKER, 9 RICHARD C. WESLEY, 10 Circuit Judges . 11

_____________________________________ 12 13 MAINNUDDIN BHUIYAN, 14 Petitioner , 15 16 v. 08-2606-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL 20 Respondent . 21

_____________________________________ 22 23 FOR PETITIONER: Indra Pal, Brooklyn, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; Barry J. Pettinato, 27 Assistant Director; Jennifer R. 28 Khouri, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, D.C.2 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 4 is DENIED. 5 Mainnuddin Bhuiyan, a native and citizen of Bangladesh, 6 seeks review of a May 2, 2008 order of the BIA, affirming 7 the March 12, 2007 decision of the Immigration Judge (“IJ”), 8 dening his application for withholding of removal and relief 9 under the Convention Against Torture (“CAT”). In re 10 Mainnuddin Bhuiyan , No. A078 517 743 (B.I.A. May 2, 2008), 11 aff’gNo. A078 517 743 (Immig. Ct. N.Y. City Mar. 12, 2007). 1 2 We assume the parties’ familiarity with the underlying facts 1 3 and procedural history in this case. 1 4 Under the circumstances of this case, we consider both 1 5 the IJ’s and the BIA’s opinions “for the sake of 1 6 completeness.” Zaman v. Mukasey , 514 F.3d 233, 237 (2d Cir. 1 7 2008). The applicable standards of review are well1 8 established. Shu Wen Sun v. BIA , 510 F.3d 377, 379 (2d Cir. 1 9 2007); Salimatou Bah v. Mukasey , 529 F.3d 99, 110 (2d Cir. 2 0 2008). 2 1 Although the agency erred in its failure to expressly 2 2 determine whether Bhuiyan established past persecution, see3 1 Beskovic v. Gonzales , 467 F.3d 223, 227 (2d Cir. 2006), we 2 find that the agency’s reasonable finding that Bhuiyan can 3 avoid future persecution by relocating within Bangladesh 4 obviates the need for remand. See Steevenez v. Gonzales , 5 476 F.3d 114, 117-118 (2d Cir. 2007); see also Xiao Ji Chen 6 v. U.S. Dep’t of Justice , 471 F.3d 315, 339 (2d Cir. 2006) 7 (holding that remand is futile “when the reviewing court can 8 ‘confidently predict’ that the agency would reach the same 9 decision absent the errors that were made” (quoting Cao He 10 Lin v. U.S. Dep’t of Justice , 428 F.3d 391, 395 (2d Cir. 1 1 2005)). Even where an applicant for withholding of removal 1 2 has established past persecution, the presumption of future 1 3 persecution may be rebutted by a finding that “[t]he 1 4 applicant could avoid a future threat to his or her life or 1 5 freedom by relocating to another part of the proposed 1 6 country of removal and, under the circumstances, it would be 1 7 reasonable to expect the applicant to do so.” 8 C.F.R. 1 8 § 1208.16(b)(1)(i)(B). 1 9 The BIA’s determination that Bhuiyan can avoid future 2 0 threat to his life by relocating to another part of 2 1 Bangladesh is amply supported by the record. Bhuiyan 2 2 testified that he moved to an area of Bangladesh called4 1 Sylhet because it was “safe for [him] to stay out of [his 2 hometown],” and lived there for four years without incident. 3 Bhuiyan also testified that he “was doing fine” in Sylhet, 4 and only left because the business he started there was not 5 profitable. In short, even if Bhuiyan established past 6 persecution, the presumption of future persecution was 7 adequately rebutted by the BIA’s reasonable finding that 8 Bhuiyan could relocate within Bangladesh to avoid 9 persecution. See 8 C.F.R. § 1208.16(b)(1)(i)(B); see also 10 Kambolli v. Gonzales , 449 F.3d 454, 457 (2d Cir. 2006) 1 1 (upholding an IJ’s denial of relief that was supported in 1 2 part by a finding that the alien “successfully evaded 1 3 trouble by relocating within [his country of origin]”). 1 4 Accordingly, we deny Bhuiyan’s petition for review of his 1 5 application for withholding of removal. 1 6 Because Bhuiyan fails to sufficiently challenge the 1 7 agency’s denial of his CAT claim, we deem any such claim 1 8 waived. See Yueqing Zhang v. Gonzales , 426 F.3d 540, 545 1 9 n.7 (2d Cir. 2005).

For the foregoing reasons, the petition for review is 20 2 1 DENIED. As we have completed our review, any stay of 2 2 removal that the Court previously granted in this petition 2 3 is VACATED, and any pending motion for a stay of removal in5

this petition is DISMISSED as moot. Any 1 pending request for 2 oral argument in this petition is DENIED in accordance with 3 Federal Rule of Appellate Procedure 34(a)(2), and Second 4 Circuit Local Rule 34(b). 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8 By:___________________________ 9