11-1152-ag

Kamal v. Holder

BIA

A073 611 506

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 3rd day of April, two thousand twelve.

PRESENT:

DENNIS JACOBS,

Chief Judge,

PETER W. HALL,

GERARD E. LYNCH,

 Circuit Judges. 

_____________________________________

JOSEPH M. KAMAL,

Petitioner, 

 v. 11-1152-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_______________________________________

FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New

York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; James E. Grimes, Senior

Litigation Counsel; Thankful T.

Vanderstar, Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
2

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 Joseph M. Kamal, a native and citizen of

Bangladesh, seeks review of a February 24, 2011, decision of

the BIA denying his motion to reopen his deportation

proceedings. In re Joseph M. Kamal, No. A073 611 506

(B.I.A. Feb. 24, 2011). We assume the parties’ familiarity

with the underlying facts and procedural history in this

case.

We review the BIA’s denial of a motion to reopen for

abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

(2d Cir. 2006). An alien seeking to reopen proceedings is

required to file a motion to reopen no later than ninety

days after the date on which the final administrative

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

C.F.R. § 1003.2(c)(2). There is no dispute that Kamal’s

motion to reopen, filed in July 2010, was untimely because

the BIA issued a final order of removal in May 2002.

Kamal contends, however, that his Filipino wife’s

recent separation and his corresponding loss of safe haven

in the Philippines, coupled with an increase in violence

against Christian converts in Bangladesh, constitute changed

country conditions excusing his motion from the applicable

time limitation. See 8 U.S.C. § 1229a(c)(7)(C)(ii). 

Substantial evidence supports the BIA’s finding that Kamal

failed to demonstrate a material change in country

conditions in Bangladesh sufficient to excuse the

untimeliness of his motion to reopen. See Jian Hui Shao v.

Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

In considering Kamal’s claim of changed country

conditions, the BIA reasonably relied on the evidence in the

record at the time of his underlying proceedings to

determine that “mistreatment of Christians and other

religious minorities in Bangladesh does not constitute a

changed circumstance, but rather has been ongoing for many

years and is substantial.” In re Joseph M. Kamal, No. A073

611 506, at *1; see 8 C.F.R. § 1003.2(c)(3)(ii); In re

S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In

determining whether evidence accompanying a motion to reopen
3

demonstrates a material change in country conditions that

would justify reopening, [the BIA] compare[s] the evidence

of country conditions submitted with the motion to those

that existed at the time of the merits hearing below.”). As

a result, the BIA did not abuse its discretion in denying

Kamal’s motion to reopen as untimely. 

Similarly, the BIA’s alternative finding, that Kamal

failed to establish his prima facie eligibility for relief,

was not an abuse of discretion. See Jian Xing Huang v. INS,

421 F.3d 125, 129 (2d Cir. 2005) (holding that “[i]n the

absence of solid support in the record for [an applicant’s]

assertion that he will be subjected to [persecution], his

fear is speculative at best”). Although Kamal now argues

that the BIA ignored his purported social group – persons

who converted to Christianity – Kamal presented this same

claim during his initial asylum proceedings, which the

agency rejected as implausible in light of his decision to

leave his Christian wife and daughter behind in Bangladesh

and his wife’s repeated return trips to the country. 

Moreover, the agency is presumed to have “taken into account

all of the evidence before [it], unless the record

compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t

of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006), and is

not required to “expressly parse or refute on the record

each individual argument or piece of evidence offered by the

petitioner,” Jian Hui Shao, 546 F.3d at 169 (quotation marks

omitted). A review of the record does not suggest that the

BIA failed to consider Kamal’s claimed fear based on his

conversion to Christianity. In rejecting his prima facie

showing, the BIA reasonably determined that Kamal failed to

cure the underlying implausibility of his claimed fear of

persecution from Muslim extremists. Cf. Kaur v. BIA, 413

F.3d 232, 234 (2d Cir. 2005) (per curiam).

Kamal’s argument that the BIA ignored the impact on his

daughter of returning to Bangladesh, “as a modern Filipino

girl,” is also without merit. See Xiao Ji Chen, 471 F.3d at

337 n.17. Although Kamal argued in his motion to reopen

that his daughter had a well-founded fear of persecution

based on her “foreign born status,” as the BIA pointed out,

“his daughter was born in Bangladesh.” Moreover, in finding

that Kamal failed to establish his daughter’s prima facie

eligibility for relief, the BIA reasonably relied on the
4

absence of any evidence in the record suggesting that his

daughter would be targeted merely because her gender and her

Filipino ethnicity. See Jian Xing Huang, 421 F.3d at 129.

In sum, Kamal failed to demonstrate his prima facie

eligibility for relief. The BIA thus did not abuse its

discretion in denying his motion to reopen. See INS v.

Abudu, 485 U.S. 94, 104-05 (1988).

For the foregoing reasons, the petition for review is

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

removal that the court previously granted in this petition

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

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk