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 

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 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 

26
 Petitioners 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, 517
3

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, we
 In 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 1
offered 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 William majority); 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 time10 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 of
6

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