08-2606-ag

Bhuiyan v. Holder

BIA

Bukszpan, IJ

A078 517 743

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 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’g No. A078 517 743 (Immig. Ct. N.Y. City Mar. 12, 2007). 

12 We assume the parties’ familiarity with the underlying facts

13 and procedural history in this case.

14 Under the circumstances of this case, we consider both

15 the IJ’s and the BIA’s opinions “for the sake of

16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

17 2008). The applicable standards of review are well18 established. Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.

19 2007); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

20 2008). 

21 Although the agency erred in its failure to expressly

22 determine whether Bhuiyan established past persecution, see
3

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.

11 2005)). Even where an applicant for withholding of removal

12 has established past persecution, the presumption of future

13 persecution may be rebutted by a finding that “[t]he

14 applicant could avoid a future threat to his or her life or

15 freedom by relocating to another part of the proposed

16 country of removal and, under the circumstances, it would be

17 reasonable to expect the applicant to do so.” 8 C.F.R.

18 § 1208.16(b)(1)(i)(B). 

19 The BIA’s determination that Bhuiyan can avoid future

20 threat to his life by relocating to another part of

21 Bangladesh is amply supported by the record. Bhuiyan

22 testified that he moved to an area of Bangladesh called
4

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)

11 (upholding an IJ’s denial of relief that was supported in

12 part by a finding that the alien “successfully evaded

13 trouble by relocating within [his country of origin]”). 

14 Accordingly, we deny Bhuiyan’s petition for review of his

15 application for withholding of removal. 

16 Because Bhuiyan fails to sufficiently challenge the

17 agency’s denial of his CAT claim, we deem any such claim

18 waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545

19 n.7 (2d Cir. 2005).

20 For the foregoing reasons, the petition for review is

21 DENIED. As we have completed our review, any stay of

22 removal that the Court previously granted in this petition

23 is VACATED, and any pending motion for a stay of removal in
5

1 this petition is DISMISSED as moot. Any 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

9 By:___________________________