20

- 3546 Nehma v. Garland BIA Connelly , IJ A 212 171 605 

### 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. At a stated term of the United States Court of Appeals for the Second 1 Circuit, held at the Thu rgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 1 2 t h da y of A p r i l , two thousand 3 twenty

- t hree

. 4 5 PRESENT: 6 JOHN M. WALKER, JR., 7 ROBERT D. SACK , 8 MICHAEL H. PARK , 9 Circuit Judges. 10

_____________________________________ 11 12 WALID KATHEM NEHMA , 13 Petitioner , 14 15

v. 20

- 3546 16 NAC 17 MERRICK B. GARLAND , 18 UNITED STATES ATTORNEY 19 GENERAL, 20 Respondent

. 21

_____________________________________ 22 232 FOR PETITIONER : Russell Reid Abrutyn , Abrutyn Law PLLC, 1 Berkley, MI. 2 3 FOR RESPONDENT: Brian M. Boynton , Acting Assistant Attorney 4 General ; Julie M. Iversen , Senior Litigation 5 Counsel ; James A. Hurley , Attorney , Office of 6 Immigration Litigation, United States 7 Department of Justice, Washington, D C. 8 UPON DUE CONSIDERATION of this petition for review of a Board of 9
Immigration Appeals (“BIA”) decision, it is hereby ORDERED , ADJUDGED , 10

AND DECREED that the petitio n for review is DENIED

. 11

Petitioner Walid Kathem Nehma , a native and citizen of Iraq , seeks review 12

of a September 24 , 2020 decision of the BIA affirming a November 7 , 20 18 decision 13
of an Immigration Judge (“IJ”) denying his motion to reopen removal proceedings

. 14

See In re Walid Kathem Nehma , No. A 212 171 605 (B.I.A. Sep t

. 24 , 2020 ), aff’g No. A 15

212 171 605 (Immig r . Ct. Batavia Nov. 7 , 20 18 ). We assume the parties’ familiarity 16
with the underlying facts and procedural history. 17
We review the BIA’s denial of a motion to reopen for abuse of discretion

. 18

See Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 2006). An alien may file a motion to 19
reopen no later than 90 days after the final administrative decision. See 8 U.S.C. 20
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 213 I. Particularly

- S erious

- C rime D etermination 1
The agency correctly denied reopening based on Nehm a ’s ineligib ility for 2
withholding of removal. 1 An applicant is barred from withholding of removal 3

under the Immigration and Nationality Act and the Convention Against Torture 4
(“ CAT ”) if “the alien, having been convicted by a final judgment of a particularly 5
serious crime is a danger to the community of the United States.” 8 U.S.C. 6
§ 1231(b)(3)(B)(ii); see 8 C.F.R. § 1208.16(d)(2) (CAT withholding); Ruiz

- Martinez v. 7
Mukasey , 516 F.3d 102, 10 8 n.3 (2d Cir. 2008). An aggravated felony for which an 8

alien is sentenced to a term of imprisonment of five years or more is per se 9
particularly serious. See 8 U.S.C. § 1231(b)(3)(B). Nehma does not dispute that 10

his conviction under New York Pen al Law §§ 110, 130.35(1) for attempted rape is 11
an aggravated felony or that he was sentenced to five years ’ imprisonment. 12

Instead, he contends that the BIA had to consider separately whether he was a 13
danger to the community. This is incorrect and foreclosed by precedent. 14
Under BIA precedent, “once an alien is found to have committed a 15
particularly serious crime, [the agency] no longer engage[s] in a separate 16

1 Nehma does not challenge the agency’s denial of reopening with respect to asylum.4 determination to address whether the alien is a danger to the community.” In re 1

N

- A

- M , 24 I. & N. Dec. 336, 3 42 (B.I.A. 2007). We have previously afforded 2

Chevron deference to the BIA’s interpretation that there is no separate danger

- to

3

the

- community analysis required when deter mining whether a crime is 4
particularly serious. See Ahmetovic v. INS , 62 F.3d 48, 52

- 53 (2d Cir. 1995). “In 5
our Circuit, panels are bound by the decisions of prior panels until such time as 6
they are overruled either by an en banc panel of our Court or by the Supreme 7
Court. However, a panel may overrule a prior decision if there has been an 8
intervening Supreme Court decision that casts doubt on our controlling 9
precedent.” Matthews v. Barr , 927 F.3d 606, 614 (2d Cir. 2019) ( cleaned up ). 10
Nehma argues that we should reconsider our precedent s for two reasons. 11
First, he argues that Ahmetovic runs afoul of the Supreme Court ’s decision in Kisor 12

v. Wilke , 139 S. Ct. 2400 (2019)

. We disagree

. Kisor concerned the application of 13

Auer deference to an agency’s reading of an ambiguous regulation and held that 14
for deference to apply , a regulation must be “genuinely ambiguous, even after a 15
court has resorted to all the standard tools of interpretation

. ” Id . at 2414. Unlike 16

Kisor , Ahmetovic reviewed the BIA’s interpretation of a statute , not a regulation

. 17

See Ahmetrovic , 62 F.3d at 52

. I n any event, Ahmetovic did not simply defer to the 185 BIA without addressing ambiguity ; rather, we discussed the text of the statute and 1

examined persuasive authority before granting Chevron deference

. See id

. at 52

- 2

53

. 3

Second, Nehma contends that when Ahmetovic was decided, the agency 4
reviewed the type and circumstances of the offense, but now the BIA limits its 5

review to the nature of the crime and eliminates consideration of whether the 6

circumstances created a likelihood of future misconduct. Nehma points to t he 7

BIA’s decision in In re N

- A

- M

- , 24 I. & N. Dec. 336 (B.I.A. 2007), as evidence of the 8

new framework . B ut this argument fails because this Court already has deferred 9
to the BIA’s interpretation in N

- A

- M

- . See Nethagani v. Mukasey , 532 F.3d 150, 156

– 10

57 (2d Cir. 2008)

. 11

II. CAT Deferral 12
The agency correctly denied Nehma’s motion to reopen with respect to CAT 13

relief

. See 8 C.F.R. § 1208.17(a). Nehma argues that (1) his evidence of changes 14
in Iraq satisfied the changed

- conditions exception to the 90

- deadline for motions 15
to reopen, and (2) h e established a prima facie case of eligibility for CAT relief

. 16
Because the BIA’s decision discussed some but not all the IJ’s findings and did not 176 reject any portion of the IJ’s deci sion, we review both decisions. See Ming Xia 1

Chen v. BIA , 435 F.3d 141, 144 (2d Cir. 2006)

. 2

A. Changed Country Conditions 3
Substantial evidence supports the agency’s determination that Nehma did 4
not demonstrate changed conditions in Iraq for Christians or for deportees from 5
the United States since his 2014 removal proceedings. The time for filing a motion 6
to reopen may be excused if the motion “ is based on changed country conditions 7
arising in the country of nationality

. . . if such evid ence is material and was not 8
available and would not have been discovered or presented at the previous 9
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 8 C.F.R. § 1003.23(b)(4)(i). We 10

review th e agency’s determination of country conditions for substantial evidence. 11
See Jian Hui Shao v. Mukasey , 546 F.3d 138, 169 (2d Cir. 2008). 12
Nehma fails to present evidence of any materially changed country 13

conditions. “ When reviewing whether

. . . evidence established changed country 14

conditions, the BIA must compare the evidence of country conditions submitted 15
with the motion to those that existed at the time of the merits hearing below.” 16

Tanusantoso v. Barr , 962 F.3d 694, 698 (2d Cir. 2020) ( cleaned up ) . The change must 17

be more than “incremental or incident al.” In re S

- Y

- G

- , 24 I. & N. Dec. 247, 257 187 (B.I.A. 2007) . Nehma cites State Department reports and expert reports to 1

establish that Christians and deportees from the United States are being tortured 2
in Iraq

. These sources, however, reflect ongoing conditions for Christian s and 3
deportees , not changed conditions arising after Nehma’s 2014 hearing

. H is 4

evidence reflects that Christians and Iraqis perceived as affiliated with the United 5

States have been under attack s ince 2003 , before Nehma’s original proceedings

. 6
Some of the evidence, which addresses a threat to Christians in Iraq under ISIS 7
control between 2014 and 2016, is now obsolete as later reports reflect that ISIS lost 8
much of its control in Iraq by 2017. 2 S ubstantial evidence thus supports the 9
agency’s conclusion that Nehma failed to establish a change in condition s m aterial 10

to his fear of torture as a Christian and his status as a westernized deportee. 11

B. Prima Facie Eligibility 12

Even if Nehma could establish an exception to the filing deadline, Nehma 13

had the “burden

. . . to establish prima facie eligibility for [the relief sought], i.e., a 14

realistic chance that [ h ] e will be able to establish eligibility” for CAT relief. Jian 15

2 Nehma’s alleged conversion to Christianity is not by itself a material change in circumstances. Wei Guang Wang v. BIA , 437 F.3d 270, 274 (2d Cir. 2006) (holding that a pe titioner cannot “seek[] to reopen

. . . due to circumstances entirely of his own making after being ordered to leave the United States”).8 Hui Shao , 546 F.3d at 154

– 55 (cleaned up). An applicant for CAT relief bears the 1
burden of “establish[ing] that it is more likely than not that he

. . . would be 2
tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16 (c) (2). 3
A petitioner must prov ide “affidavits” or “other evidentiary material” that 4
support his application for relief from removal. 8 C.F.R. § 1003.23(b)(3). Where, 5
as here, “a petitioner bears the burden of proof, his failure to adduce evidence can 6

itself constitute the ‘substantia l evidence’ necessary to support the agency’s 7
challenged decision.” Jian Hui Shao , 546 F.3d at 157

– 58. 8
Nehma presents no such evidence here. Nehma declared that he converted 9
to Christianity in prison in 2015 and the Mahdi A rmy would kill him if he returned 10
to Iraq as a deported Christian

. But Nehma did not support his motion to reopen 11

with evidence of his conversion to and practice of Christianity. S ee Y.C. v. Holder , 12
741 F.3d 324, 338 (2d Cir. 2013) ( discussing credibility and the ease of 13

manufac turing asylum claims based on activities in the United States). Nor did 14
Nehma provide evidence that he would be readily identifiable in Iraq as 15
westernized given that he was born and raised in Iraq. S ubstantial evidence thus 16
supports the agency’s finding that Nehma presented insufficient evidence to 17

demonstrate a likelihood that he would be tortured due to his Christian faith or 189 his status as a deportee from the United States

. S ee id. at 33 2 (holding that t his 1
Court “generall y defer[s] to the agency’s evaluation of the weight to be afforded 2
an applicant’s documentary evidence”); Jian Hui Shao , 546 F.3d at 157

– 58. 3
For the foregoing reasons, the petition for review is DENIED

. All pending 4
motions and applications are DENIED and stays VACATED

. 5

FOR THE COURT: 6 Catherine O ’ Hagan Wolfe , 7 Clerk of Court 8