The Clerk of the Court is respectfully directed to amend the * official caption of this action to conform to the caption listed above. 09-2101-ag Ullah v. Holder UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

RULI NGS BY SUMMARY ORD ER DO NOT HAVE PRE CED ENT IAL EF FEC T . C ITA TIO N T O ASUMMARY ORD ER FIL ED ON OR AFT ER JANUARY 1, 2007, IS PE RMI TTE D AND IS GOV ERN ED BY F EDE RAL RULE OF A PPE LLA TE P ROC EDU RE 32.1 AND THI S C OUR T ’ S L OCA L RULE 32.1.1. W HEN C ITI NG A SUMMAR Y ORD ER IN A DOC UME NT FIL ED WIT H T HIS CO URT , A PART Y MUS T C ITE EI THE R T HE F EDE RAL A PPE NDI X O R AN ELE CTR ONI C D ATABAS E ( WIT H T HE NOT ATI ON “ SUMMAR Y O RDE R ”). APARTY CI TIN G ASUMMARY ORD ER MUS T S ERV E ACO PY OF IT ON ANY PARTY NO T R EPR ESE NTE D B Y C OUN SEL . 

### 1 At a stated term of the United States Court of Appeals 

### 2 for the Second Circuit, held at the Daniel Patrick Moynihan 

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

### 4 New York, on the 2 day of July, two thousand and ten. nd 

### 5 6 PRESENT: ROGER J. MINER, 

### 7 JOSÉ A. CABRANES, 

### 8 RICHARD C. WESLEY, 

### 9 Circuit Judges . 

### 10 11 12 MOHAMMED JAFAR ULLAH, MAMTAJ BEGUM, 

### 13 JAHED MOHAMMED JAFARULLAH, FAHAD 

### 14 MOHAMMED JAFARULLAH, and SHAHEEN AHKTER, 

### 15 16 Petitioners , 

### 17 18 -v.- 09-2101-ag 

### 19 20 ERIC HOLDER, JR., United States Attorney 

### 21 General, and DEPARTMENT OF HOMELAND 

### 22 SECURITY, 

### 23 24 Respondents . * 

### 25 26Petitioners Mohammed Jafar Ullah and Mamtaj Begum are 1 husband and wife, respectively, and the remaining petitioners are their children. 2 

### 1 FOR PETITIONERS: AMY N. GELL, Gell & Gell, New York, 

### 2 NY. 

### 3 4 FOR RESPONDENTS: ANDREW B. INSEGNA, Trial Attorney, 

### 5 Office of Immigration Litigation 

### 6 (Tony West, Assistant Attorney 

### 7 General; Daniel E. Goldman, Senior 

### 8 Litigation Counsel, Office of 

### 9 Immigration Litigation, on the 

### 10 brief ), Civil Division, U.S. 

### 11 Department of Justice, Washington, 

### 12 DC. 

### 13 14 UPON DUE CONSIDERATION of this petition for review of a 

### 15 Board of Immigration Appeals (“BIA”) decision , IT IS HEREBY 

### 16 ORDERED, ADJUDGED, AND DECREED that the petition for review 

### 17 is DENIED . 

### 18 Petitioners Mohammed Jafar Ullah, Mamtaj Begum, Jahed 

### 19 Mohammed Jafarullah, Fahad Mohammed Jafarullah, and Shaheen 

### 20 Akhter, natives and citizens of Bangladesh, seek review of 1 

### 21 the orders of the BIA denying their motion to reopen their 

### 22 removal proceedings. We assume the parties’ familiarity 

### 23 with the underlying facts and the procedural history of the 

### 24 case. 

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

### 26 abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 5173 

### 1 (2d Cir. 2006). An alien who has been ordered removed may 

### 2 typically file one motion to reopen, but he or she must do 

### 3 so within 90 days of the final administrative decision. 8 

### 4 U.S.C. § 1229a(c)(7)(A), 1229a(c)(7)(C)(i). There is no 

### 5 dispute that, with respect to each petitioner, the motion to 

### 6 reopen that is the subject of this petition was untimely and 

### 7 number-barred. See id. ; 8 C.F.R. § 1003.2(c)(2). However, 

### 8 seeking to avoid these procedural restrictions, petitioners 

### 9 argued to the BIA that “changed country conditions” in 

### 10 Bangladesh excused them from the time limits on motions to 

### 11 reopen. 8 U.S.C. § 1229a(c)(7)(C)(ii). 

### 12 In a May 14, 2009 order, the BIA denied the motion as 

### 13 to petitioners Mamtaj Begum, Jahed Mohammed Jafarullah, 

### 14 Fahad Mohammed Jafarullah, and Shaheen Akhter. The agency 

### 15 reasoned that these petitioners had “not adequately 

### 16 demonstrated changed country circumstances in Bangladesh 

### 17 since their last motion in 2008 or even since their removal 

### 18 hearing in 1999 to support their claim that their fears are 

### 19 well-founded or that there is a clear probability of 

### 20 persecution or torture if they are forced to return to 

### 21 Bangladesh.” Having reviewed the documentation that 

### 22 petitioners submitted in support of their motion, weIn In re Armendarez-Mendez , 24 I. & N. Dec. 646 (BIA 1 2008), the BIA rejected the interpretation of the INA 4 

### 1 conclude that substantial evidence supports the BIA’s 

### 2 conclusion that these four petitioners failed to establish 

### 3 changed country conditions in support of their motion to 

### 4 reopen. See Jian Hui Shao v. Mukasey , 546 F.3d 138, 169 (2d 

### 5 Cir. 2008). Moreover, a reasonable fact-finder would not be 

### 6 compelled to conclude that the BIA ignored any material 

### 7 evidence that petitioners submitted. See Wei Guang Wang v. 

### 8 BIA , 437 F.3d 270, 275 (2d Cir. 2006). Accordingly, with 

### 9 respect to petitioners Mamtaj Begum, Jahed Mohammed 

### 10 Jafarullah, Fahad Mohammed Jafarullah, and Shaheen Akhter, 

### 11 the petition for review is denied. 

### 12 In a separate May 14, 2009 order, the BIA denied the 

### 13 motion to reopen by Mohammed Jafar Ullah based on the 

### 14 agency’s “departure bar” regulation, 8 C.F.R. § 1003.2(d), 

### 15 reasoning that it lacked jurisdiction to consider the motion 

### 16 because Ullah had been removed from the United States. On 

### 17 appeal, Ullah relies on William v. Gonzales , 499 F.3d 329 

### 18 (4th Cir. 2007), to argue that the departure bar regulation 

### 19 “conflicts” with the current provisions of the Immigration 

### 20 and Nationality Act (“INA”) relating to motions to reopen 

### 21 removal proceedings, 8 U.S.C. § 1229a(c)(7). We decline 1offered by the Fourth Circuit in William . Id. at 653-60.

At least two of our sister circuits have reached a similar conclusion as that reached by the BIA. See Rosillo-Puga v. Holder , 580 F.3d 1147, 1153-58 (10th Cir. 2009) (expressly rejecting the analysis of the Williammajority); Pena-Muriel v. Gonzales , 489 F.3d 438, 441-43 (1st Cir. 2007) (rejecting the argument that the departure bar regulation was impliedly repealed by the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996)); see also Mendiola v. Holder , 585 F.3d 1303, 1310 (10th Cir. 2009) (following Rosillo-Puga ). But see Coyt v. Holder , 593 F.3d 902, 907 (9th Cir. 2010) (holding that the departure bar “cannot apply to cause the withdrawal of an administrative petition filed by a petitioner who has been involuntarily removed”). 5 

### 1 to address this argument. We do so because, even if we were 

### 2 to resolve the issue in Ullah’s favor, a remand to the BIA 

### 3 would be futile. “[O]ur decision to uphold the agency 

### 4 decision or to remand for further proceedings depends on how 

### 5 ‘confidently’ we can ‘predict that the agency would reach 

### 6 the same decision absent the errors that were made.’” 

### 7 Shunfu Li v. Mukasey , 529 F.3d 141, 150 (2d Cir. 2008) 

### 8 (quoting Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 339 

### 9 (2d Cir. 2006)). Ullah’s motion, which was otherwise time

### 10 and number-barred, was based on the same legal argument — 

### 11 i.e. , “changed country conditions” in Bangladesh, 8 U.S.C. § 

### 12 1229a(c)(7)(C)(ii) — and similar supporting documentation as 

### 13 the motion filed by the other members of his family. 

### 14 Because we have already concluded that the BIA’s denial of6 

### 1 the motion to reopen as to the other four petitioners was 

### 2 not an abuse of its discretion, we are “confident[]” that 

### 3 the agency would reach the same conclusion as to Ullah if we 

### 4 were to remand and that it would be within its discretion to 

### 5 do so. Accordingly, Ullah’s petition is denied. 

### 6 We have reviewed all of petitioners’ arguments and find 

### 7 them to be without merit. Accordingly, the petition for 

### 8 review is DENIED . 

### 9 For the Court 

### 10 Catherine O’Hagan Wolfe, Clerk 

### 11 12 13