11-4963

Shabbir v. Holder

BIA

Reid, IJ

A088 938 582 

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 United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 8th 4 day of April, two thousand thirteen.

5

6 PRESENT:

7 DEBRA ANN LIVINGSTON,

8 DENNY CHIN,

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 ______________________________________

12

13 IRFAN SHABBIR, AKA IRFAN SHABBIR MALIK,

14 AKA ALI SHAH-SYED, AKA IRFAN SHABEER,

15 Petitioner, 

16

17 v. 11-4963

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

Respondent.* 21

22 _______________________________________

23

24 FOR PETITIONER: Mitchell C. Zwaik, Zwaik, Gilbert &

25 Associates, P.C., Ronkonkoma, NY.

* The Clerk of the Court is directed to amend the

official caption to conform to the above.
1 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

2 Attorney General; Keith L. McManus,

3 Senior Litigation Counsel; Michele

4 Y.F. Sarko, Attorney, Office of

5 Immigration Litigation, United

6 States Department of Justice,

7 Washington, D.C.

8

9 UPON DUE CONSIDERATION of this petition for review of a

10 Board of Immigration Appeals (“BIA”) decision, it is hereby

11 ORDERED, ADJUDGED, AND DECREED that the petition for review

12 is DENIED.

13 Irfan Shabbir, a native and citizen of Pakistan, seeks

14 review of an October 31, 2011, decision of the BIA affirming

15 the December 9, 2010, decision of Immigration Judge (“IJ”)

16 John B. Reid, which denied his application for asylum,

17 withholding of removal, and relief under the Convention

18 Against Torture (“CAT”). In re Irfan Shabbir, No. A088 938

19 582 (B.I.A. Oct. 31, 2011), aff’g No. A088 938 582 (Immig.

20 Ct. Batavia Dec. 9, 2010). We assume the parties’

21 familiarity with the underlying facts and procedural history

22 in this case.

23 Under the circumstances of this case, we review both

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

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

26 2008)(quotation omitted). The applicable standards of

2
1 review are well-established. 8 U.S.C. § 1252(b)(4)(B); see

2 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

3 2008) (per curiam).

4 For asylum applications, such as Shabbir’s, governed by

5 the amendments made to the Immigration and Nationality Act

6 by the REAL ID Act of 2005, the agency may, considering the

7 totality of the circumstances, base a credibility finding on

8 the internal consistency of the applicant’s account, and the

9 consistency of such statements with other record evidence,

10 without regard to whether an inconsistency or inaccuracy

11 “goes to the heart of the applicant’s claim.” 8 U.S.C.

12 § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 165.

13 Here, substantial evidence supports the agency’s

14 adverse credibility determination, given Shabbir’s

15 misrepresentations in his Canadian refugee proceedings, his

16 internally contradictory testimony about an alleged incident

17 in 2001, and a material omission in his asylum application -

18 that he was beaten and tortured while in medical college.

19 See Xiu Xia Lin, 534 F.3d at 167. Shabbir’s explanation for

20 his misrepresentations in his Canadian proceedings – he was

21 advised that it would make his application more successful -

22 would not compel a reasonable fact-finder to credit his

3
1 testimony, see Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

2 Cir. 2005), especially given his failure to meaningfully

3 contest the other bases of the adverse credibility

4 determination, see Yueqing Zhang v. Gonzales, 426 F.3d 540,

5 541 n. 1, 545 n.7 (2d Cir. 2005). 

6 The agency also reasonably found that Shabbir failed to

7 establish a pattern or practice of persecution of members of

8 prominent Shia families by Sunni extremists in Pakistan. 

9 Initially, we may review Shabbir’s pattern or practice claim

10 because it is subsidiary to his claims raised before the

11 agency. See Gill v. INS, 420 F.3d 82, 86-87 (2d Cir. 2005). 

12 The agency reasonably determined that the late-filed copies

13 of letters written by Pakistani officials indicating that

14 his father was on a “hit list” of Sunni extremists were not

15 persuasive evidence supporting his pattern or practice of

16 persecution claim because they did not mention him

17 specifically and because his father remained in Pakistan

18 unharmed. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

19 F.3d 315, 342 (2d Cir. 2006); Melgar de Torres v. Reno, 191

20 F.3d 307, 313 (2d Cir. 1999). 

21 Moreover, the BIA reasonably determined that while some

22 background evidence indicated the existence of sectarian

23 violence in Pakistan, including violence against Shia

4
1 Muslims by extremist Sunni Muslims, the evidence also

2 indicated that the violence was insufficiently widespread to

3 conclude that the persecution was both systematic and

4 pervasive. See Santoso v. Holder, 580 F.3d 110, 111-12 (2d

5 Cir. 2009) (accord 8 C.F.R. § 1208.16(b)(2)); see also Siewe

6 v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007).

7 As he has failed to meet the lower burden for asylum

8 eligibility, Shabbir also fails to meet the higher standard

9 for withholding of removal, that it is more likely than not

10 that he would be persecuted in Pakistan. See generally INS

11 v. Cardoza-Fonseca, 480 U.S. 421 (1987).

12 For the foregoing reasons, the petition for review is

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

14 removal that the Court previously granted in this petition

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

16 this petition is DENIED as moot. Any pending request for

17 oral argument in this petition is DENIED in accordance with

18 Federal Rule of Appellate Procedure 34(a)(2), and Second

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

5