18-373

Rafiq v. Barr

BIA

A073 612 832

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 

for the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 16th day of September, two thousand twenty.

PRESENT:

JON O. NEWMAN,

ROBERT D. SACK,

STEVEN J. MENASHI,

Circuit Judges.*

_____________________________________

AJMAL RAFIQ, AKA AJMAL CHAUDARY 

RAFIQ,

Petitioner,

v. 18-373

NAC

WILLIAM P. BARR, UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, 

New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant 

Attorney General; Jeffrey R. 

Leist, Senior Litigation Counsel; 

Raya Jarawan, Trial Attorney, 

* Circuit Judge Peter W. Hall, originally a member of the panel, is 

currently unavailable. Circuit Judge Jon O. Newman has replaced Judge 

Hall on the panel for this matter. See 2d Cir. IOP E(b).
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Office of Immigration Litigation,

United States Department of 

Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a 

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

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is DENIED.

Petitioner Ajmal Rafiq, a native and citizen of Pakistan, 

seeks review of a January 11, 2018, decision of the BIA 

denying his motion to reopen. In re Ajmal Rafiq, No. A073 

612 832 (B.I.A. Jan. 11, 2018). We assume the parties’ 

familiarity with the underlying facts and procedural history.

The applicable standards of review are well established. 

See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 

2008). In his motion to reopen, Rafiq asserted that in 2007, 

extremists in Pakistan attacked his brothers, killing one of 

them, and that he fears being kidnapped or killed because he 

is Ahmadi and he has ties to the United States. 

A noncitizen seeking to reopen removal proceedings must 

demonstrate his prima facie eligibility for relief from 

removal, “which means []he must show a ‘realistic chance’ 

that []he will be able to obtain such relief.” Id. at 168. 

The movant also must file a motion to reopen no later than 90 
3

days after the date on which the final administrative decision 

was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 

§ 1003.2(c)(2). It is undisputed that Rafiq’s 2017 motion 

to reopen was untimely because it was filed more than eight 

years after his removal order became final in 2009. See

8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 

However, this time limitation does not apply if the motion is 

filed to apply for asylum “based on changed country conditions 

arising in the country of nationality or the country to which 

removal has been ordered, if such evidence is material and 

was not available and would not have been discovered or 

presented at the previous proceedings.” 8 U.S.C. 

§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). 

The BIA did not err in finding that Rafiq’s evidence did not 

establish his prima facie eligibility for relief or a material 

change in conditions in Pakistan. 

Rafiq’s evidence of the 2007 attack against the brothers 

did not demonstrate his prima facie eligibility for relief or 

a material change in country conditions because he did not 

assert that he shares the characteristic that motivated his 

brothers’ attackers or any basis to conclude that the 

attackers would target him. See Jian Hui Shao, 546 F.3d at 
4

168; see also Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 

(2d Cir. 2005) (“In the absence of solid support in the record 

. . . [an applicant’s] fear is speculative at best.”); Melgar 

de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding 

no error in BIA’s decision that petitioner failed to establish 

a well-founded fear of persecution based on her uncle’s murder 

when she presented no direct evidence that her uncle was 

killed on account of his political opinion). Similarly, 

Rafiq’s country conditions evidence was not material because, 

although it provided that religious extremists carry out 

terrorist attacks in Pakistan, it did not mention violence or 

terrorism directed at Ahmadis or Pakistanis repatriated from 

the United States. 

Accordingly, because Rafiq failed to demonstrate his 

prima facie eligibility for relief or that conditions in 

Pakistan had materially changed, the BIA did not abuse its 

discretion in denying his motion to reopen. See 8 U.S.C. 

§ 1229a(c)(7)(C); see also Jian Hui Shao, 546 F.3d at 168.
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For the foregoing reasons, the petition for review is 

DENIED. All pending motions and applications are DENIED and 

stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court