18-2164 Anwar v. Barr BIA A095 102 165 

### 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 TO 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** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 13 th**  **day of September, two thousand** 4 **nineteen.** 5 6 **PRESENT:** 7 **PETER W. HALL,** 8 **JOSEPH F. BIANCO,** 9 **MICHAEL H. PARK,** 10 Circuit Judges. 11

**_____________________________________** 12 13 **NADEEM ANWAR,** 14 Petitioner **,** 15 16 **v. 18-2164** 17 **NAC** 18 **WILLIAM P. BARR, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Yaniv Lavy, Feiner & Lavy, P.C., 24 New York, NY. 25 26 **FOR RESPONDENT:** Joseph H. Hunt **,** Assistant 27 Attorney General; Claire L. 28 Workman, Senior Litigation 29 Counsel; John B. Holt, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC. 342 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Nadeem Anwar, a native and citizen of 5 Pakistan, seeks review of a June 22, 2018 decision of the BIA 6 denying his motion to reopen. In re Nadeem Anwar, No. A 095 7 102 165 (B.I.A. June 22, 2018). We assume the parties’ 8 familiarity with the underlying facts and procedural history 9 in this case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. See Jian Hui Shao v. Mukasey , 546 F.3d 12 138, 168-69 (2d Cir. 2008). It is undisputed that Anwar’s 13 2018 motion to reopen was untimely as it was filed more than 14 10 years after the BIA’s decision affirming his removal order. 15 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 16 Nevertheless, an applicant may, at any time, move to reopen 17 his case “based on changed country conditions arising in the 18 country of nationality or the country to which removal has 19 been ordered, if such evidence is material and was not 20 available and would not have been discovered or presented at 213 the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 1 also 8 C.F.R. § 1003.2(c)(3)(ii). To prevail on such a 2 motion, however, the applicant also must establish his prima 3 facie eligibility for the relief sought—in this case, asylum, 4 withholding of removal, and relief under the Convention 5 Against Torture. See Poradisova v. Gonzales , 420 F.3d 70, 6 78 (2d Cir. 2005); see also Abudu v. INS , 485 U.S. 94, 104 7 (1988) (identifying failure to present “previously 8 unavailable material evidence” and failure to establish prima 9 facie eligibility as independent dispositive grounds for 10 denying reopening). Accordingly, and contrary to Anwar’s 11 position, the BIA’s conclusion that Anwar failed to establish 12 prima facie eligibility for relief was dispositive, and the 13 BIA was not required to determine whether there had been a 14 change in conditions in Pakistan. 15 Nor did the BIA abuse its discretion in finding that 16 Anwar failed to demonstrate his prima facie eligibility for 17 asylum and related relief. When reviewing a motion to 18 reopen, the BIA may rely on an underlying adverse credibility 19 determination. See Qin Wen Zheng v. Gonzales , 500 F.3d 143, 20 146-47 (2d Cir. 2007). Here, the BIA relied on the fact that 214 Anwar was found not credible in the underlying proceedings, 1 and it concluded that his new evidence failed to rebut the 2 underlying adverse credibility determination. See Kaur v. 3

BIA , 413 F.3d 232, 234 (2d Cir. 2005). But Anwar has waived 4 any challenge to the BIA’s reliance on the adverse credibility 5 determination, failing to address it in his brief. Instead, 6 he mistakenly argues that the hearing transcript and 7 underlying decision of the immigration judge are not in the 8 record. They are. Certified Administrative Record at 528- 9 43 (IJ Dec.), 562-646 (Tr.). Thus, Anwar has waived the 10 dispositive basis for the BIA’s decision. See Yueqing Zhang 11 v. Gonzales , 426 F.3d 540, 541 n.1 (2d Cir. 2005). 12 Even if we were to reach the merits of the BIA’s decision, 13 we would find no abuse of discretion. As noted above, the 14 BIA was permitted to rely on the underlying adverse 15 credibility determination. See Qin Wen Zheng , 500 F.3d 143, 16 146-47; Kaur , 413 F.3d at 234. And the BIA reasonably 17 concluded that Anwar’s allegedly new evidence—which consisted 18 of un-notarized letters from individuals in Pakistan that 19 appeared to be prepared solely for the motion—was of minimal 20 evidentiary weight and failed to rehabilitate his 215 credibility. See Qin Wen Zheng , 500 F.3d at 147-48; Y.C. v. 1 Holder , 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer 2 to the agency’s evaluation of the weight to be afforded an 3 applicant’s documentary evidence.”). Though Anwar claims 4 that the BIA ignored one letter from his political party in 5 Pakistan, the agency referred to all of his letters 6 collectively and was not required to “expressly parse or 7 refute . . . [each] piece of evidence.” Jian Hui Shao , 546 8 F.3d at 169 (internal quotation marks omitted). Similarly, 9 Anwar’s argument that the BIA ignored a letter from his 10 brother and a police report is without merit. The documents 11 were not material: the letter from his brother reiterated 12 previously discredited claims and did not resolve 13 inconsistencies in the underlying testimony and evidence, and 14 the police report related to current conditions in Pakistan, 15 not to the credibility of Anwar’s claim. 16 For the foregoing reasons, the petition for review is 17 DENIED, and the pending motion for a stay of removal is 18
DISMISSED as moot. 19
FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court 22