12-4328

Azad v. Holder

BIA

Straus, IJ

A099 220 963

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

4 on the 13 day of August, two thousand fourteen. th

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 ROSEMARY S. POOLER,

9 DENNY CHIN,

10 Circuit Judges.

11 _____________________________________

12

13 NASHRAT SHAH AZAD,

14 Petitioner, 

15

16 v. 12-4328

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Glenn L. Formica, Wade Luckett,

24 Formica Williams, P.C., New Haven,

25 Connecticut.

26 

27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

28 General; Jennifer L. Lightbody,

29 Senior Litigation Counsel; Edward E.
1 Wiggers, Trial Attorney, Office of

2 Immigration Litigation, United

3 States Department of Justice,

4 Washington, D.C.

5

6 UPON DUE CONSIDERATION of this petition for review of a

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

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DENIED.

10 Petitioner Nashrat Shah Azad, a native and citizen of

11 Bangladesh, seeks review of an October 5, 2012, decision of

12 the BIA affirming a January 10, 2011, decision of

13 Immigration Judge (“IJ”) Michael W. Straus, pretermitting

14 his application for asylum and denying his application for

15 withholding of removal and relief under the Convention

16 Against Torture (“CAT”). In re Nashrat Shah Azad, No. A099

17 220 963 (B.I.A. Oct. 5, 2012), aff’g No. A099 220 963

18 (Immig. Ct. Hartford Jan. 10, 2011). We assume the parties’

19 familiarity with the underlying facts and procedural history

20 in this case.

21 Under the circumstances of this case, we have

22 considered both the IJ’s and the BIA’s opinions “for the

23 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237

24 (2d Cir. 2008)(internal quotation marks omitted). The

25 applicable standards of review are well-established. See 8

2
1 U.S.C. § 1252(b)(4)(B); Aliyev v. Mukasey, 549 F.3d 111, 115

2 (2d Cir. 2008). 

3 I. Pretermission of Asylum 

4 Title 8, Section 1158(a)(3) of the United States Code

5 provides that no court shall have jurisdiction to review the

6 agency’s finding that an asylum application was untimely

7 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

8 changed nor extraordinary circumstances excusing the

9 untimeliness under 8 U.S.C. § 1158(a)(2)(D). 

10 Notwithstanding that provision, we retain jurisdiction to

11 review constitutional claims and “questions of law.” 8

12 U.S.C. § 1252(a)(2)(D). 

13 Azad contends that the IJ “misstated the facts” in

14 finding that the 2010 attack on his sister’s newspaper did

15 not materially affect his eligibility for asylum. To the

16 extent that this argument “disputes the correctness of the

17 IJ’s fact-finding” that he was not involved with his

18 sister’s newspaper, he does not raise a reviewable question

19 of law. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

20 315, 329 (2d Cir. 2006).

21 Insofar as Azad argues that the IJ’s fact-finding was

22 flawed by an error of law, his claim lacks merit. Given

3
1 Azad’s vague testimony about his involvement with his

2 sister’s newspaper, the IJ’s finding that he had no specific

3 involvement neither “totally overlooked" nor “seriously

4 mischaracterized” the evidence. Mendez v. Holder, 566 F.3d

5 316, 323 (2d Cir. 2009).

6 II. Withholding of Removal and CAT Relief

7 Notwithstanding Azad’s argument to the contrary, the

8 agency did not err in finding that the harm he suffered in

9 Bangladesh did not rise to the level of persecution. See

10 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d

11 Cir. 2006). In finding that Azad failed to establish past

12 persecution, the agency reasonably relied on the fact that

13 he was not physically harmed in Bangladesh and remained in

14 Bangladesh, without incident, for two years following the

15 attempted assault. See id. at 341 (noting that, in order to

16 constitute persecution, the harm must be sufficiently severe

17 to rise above “mere harassment”). Although criminal charges

18 were filed against him, the record shows that Azad was never

19 subjected to serious physical or mental harm and,

20 accordingly, his experiences in Bangladesh do not constitute

21 past persecution. See Mei Fun Wong v. Holder, 663 F.3d 64,

22 72 (2d Cir. 2011).

4
1 The agency also reasonably concluded that Azad failed

2 to establish a well-founded fear of future persecution. See

3 Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005)

4 (holding that absent solid support in the record for the

5 petitioner’s assertion that he would be persecuted, his fear

6 was “speculative at best”). In making this determination,

7 the agency reasonably found that, although Azad’s family

8 members in Bangladesh had been threatened, sued, and had

9 their newspaper ransacked, these experiences did not

10 constitute persecution. See Ivanishvili, 433 F.3d at 342;

11 see also Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d

12 Cir. 1999) (determining that petitioner’s fear of future

13 persecution was diminished when similarly-situated relatives

14 continued to live in petitioner’s native country without

15 harm). Moreover, Azad remained in Bangladesh for two years

16 following the attempted attack, without incident, further

17 undercutting the likelihood of future persecution.

18 Finally, because Azad’s CAT claim is based on the same

19 evidence as his withholding of removal claim, the claim

20 fails for the same reasons. See Paul v. Gonzales, 444 F.3d

21 148, 156 (2d Cir. 2006). 

22 For the foregoing reasons, the petition for review is

23 DENIED. As we have completed our review, the pending motion

5
1 for a stay of removal in this petition is DISMISSED as moot.

2

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

6