2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-10-2012

Majeed v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3346

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3346

___________

MOAZZAM MAJEED,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A073-609-230)

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 8, 2012

Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges

(Opinion filed: May 10, 2012)

___________

OPINION

___________

PER CURIAM

Moazzam Majeed petitions for review of an order of the Board of Immigration 

Appeals (“BIA”), which denied his motion to reopen. For the reasons that follow, we 
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will deny the petition for review. 

Majeed is a citizen of Pakistan and was living in Punjab Province before leaving 

for the United States in 1993. He entered this country without inspection and was served 

with an order to show cause why he should not be deported pursuant to former 

Immigration and Nationality Act (“INA”) § 241(a)(1)(A) [8 U.S.C. § 1251(a)(1)(A)]. He 

conceded deportability, and applied for asylum, withholding of deportation, and relief 

under the Convention Against Torture (“CAT”), claiming that he was persecuted because 

of his membership in a political organization, the Muttahida Quami Movement 

(“MQM”). The Immigration Judge (“IJ”) denied relief because Majeed failed to provide 

adequate corroborating material, because the State Department had determined that the 

MQM party is virtually non-existent in Punjab Province, and because of questions about 

Majeed’s credibility.1

Almost eight years later, on January 18, 2011, Majeed filed a motion to reopen 

with the Board. He claimed that “a pattern and practice of persecution of Christians 

exists in Pakistan which did not exist at the time of . . . [his] original hearing.” In support 

 On March 12, 2003, the BIA affirmed, without opinion, the IJ’s 

decision. Majeed did not file a petition for review. 

 1 Although religious persecution was not included as a basis for relief in Majeed’s 

applications, he testified that he is “not a Muslim any more,” that his wife and family did 

not know that he had converted to Christianity, and that in Pakistan anyone “who changes 

their religion . . . [is] give[n] . . . three days to repent or the sentence is death.” In the oral 

decision, the IJ noted that Majeed was “fearful of returning to Pakistan because he has 

converted to Christianity,” but did not specifically consider a claim for relief based on 

religious persecution. 
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of the motion, Majeed submitted State Department Human Rights and Religious Freedom 

reports, as well as numerous news articles describing attacks on Christians in Pakistan 

during 2009 and 2010. As evidence of his religious convictions, Majeed provided his 

1997 baptism certificate, a program from the baptism ceremony, and an affidavit stating 

that he is “a practicing Christian.” Majeed argued that the IJ’s prior adverse credibility 

determination, which related only to his claims of past persecution on account of his 

political opinion, was “irrelevant” to the claim of persecution based on his religion. 

The Board denied the motion to reopen on August 3, 2011. The BIA noted that 

Majeed had “not presented any new evidence concerning his current status or practice 

regarding religion.” According to the Board, the baptism certificate and ceremony 

program did not constitute previously unavailable evidence under 8 C.F.R. § 1003.2(c)(1) 

because those documents predated his March 1999 hearing before the IJ. The Board also 

noted that even accepting Majeed’s proposition that the prior adverse credibility finding 

was not relevant to his religious persecution claim, Majeed “has not submitted new 

evidence that he practices Christianity now such that he may face persecution in Pakistan 

based on his religion and thus may now be eligible for asylum based on religion.”2

 2 To the extent that the Board relied on the IJ’s prior adverse credibility finding and 

questioned Majeed’s current religious practices, we reject the Board’s conclusions. See

Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (noting that “[t]he legitimacy of an 

initial credibility determination does not . . . justify denial of all subsequent applications 

for asylum”); cf. Yang v. BIA, 440 F.3d 72, 74 (2d Cir. 2006) (stating that “[n]othing in 

the record suggests that Petitioner needed to present further evidence of his religious 

convictions”).

 
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Finally, the BIA faulted Majeed for failing to submit with his motion to reopen an asylum 

application based on religion or any “supporting documentation showing his prima facie 

eligibility for relief.” Majeed filed a timely petition for review.

We have jurisdiction to review the BIA’s denial of Majeed’s motion to reopen.3

 

INA § 242 [8 U.S.C. § 1252]; Totimeh v. Att’y Gen., − F.3d −, 2012 WL 89580, at *3 

(3d Cir. Jan. 12, 2012). We review the denial of a motion to reopen for an abuse of 

discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Under this standard, we 

may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.”

Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). Generally, motions to reopen 

“are granted only under compelling circumstances” and are “‘disfavored [because] . . ., as 

a general matter, every delay works to the advantage of the deportable alien who wishes 

merely to remain in the United States.’” Guo v. Ashcroft, 386 F.3d 556, 561-62 (3d Cir.

2004) (quoting INS v. Doherty

 3 An alien generally must file a motion to reopen within 90 days of the entry of the final 

order of removal. INA § 240(c)(7)(C)(i) [8 U.S.C. § 1229a(c)(7)(C)(i)]; 8 C.F.R. 

§ 1003.2(c)(2). The BIA properly concluded that Majeed’s motion to reopen was timebarred. He argued, however, that “conditions in Pakistan have fundamentally changed, 

indeed significantly worsening.” INA § 240(c)(7)(C)(ii) [8 U.S.C. § 1229a(c)(7)(C)(ii)]

(providing that time limit does not apply to motions that rely on evidence of “changed 

country conditions arising in the country of nationality . . . if such evidence is material 

and was not available and would not have been discovered or presented at the previous 

proceeding”); see also 8 C.F.R. § 1003.2(c)(3). Although the Board specifically declined 

to address this argument, it did not, as Majeed asserts, “abdicate[] its responsibility to act 

as a factfinder in the first instance.” Rather, as explained below, the BIA properly denied 

Majeed’s motion to reopen because he failed to establish prima facie eligibility for the 

relief sought. See Huang v. Att’y Gen., 620 F.3d 372, 389-90 (3d Cir. 2010).

, 502 U.S. 314, 323 (1992)).
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Pursuant to INA § 240(c)(7)(B), the “motion to reopen shall state the new facts 

that will be proven at a hearing to be held if the motion is granted, and shall be supported 

by affidavits or other evidentiary material.” INA § 240(c)(7)(B) [8 U.S.C. 

§ 1229a(c)(7)(B)]. In addition, the regulations provide that “[i]n conjunction with a 

motion to . . . reopen pursuant to § 1003.2 . . ., an initial asylum application shall be filed 

with the Board of Immigration Appeals if jurisdiction over the proceedings is vested in 

the Board of Immigration Appeals.” 8 C.F.R. § 1208.4(b)(4). Significantly, in this 

connection, “[a] motion to reopen proceedings for the purpose of submitting an 

application for relief must be accompanied by the appropriate application for relief and 

all supporting documentation.” 8 C.F.R. § 1003.2(c)(1) (emphasis added). 

Majeed argues that § 1003.2(c)(1) did not require that he submit an asylum 

application because his “motion to reopen sought to amend his previously submitted 

asylum application.” He claims that his “motion [to reopen] relied on the same 

underlying basis as his prior application.” We disagree. Majeed’s first asylum 

application was premised solely on alleged political persecution. His motion to reopen 

was wholly based on changed country conditions in Pakistan potentially demonstrating 

an increased risk of persecution of Christians. Importantly, Majeed’s motion to reopen 

was not “accompanied by the appropriate application for relief,” as required by the plain 

language of § 1003.2(c)(1). Under these circumstances, we cannot say that the BIA 

abused its discretion in denying the motion to reopen for failure to establish prima facie 

eligibility for the relief sought. See Jiang v. Holder, 639 F.3d 751, 757 (7th Cir. 2011) 
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(stating that BIA would be within its discretion to deny motion to reopen for failure for 

submit a new asylum application); Waggoner v. Gonzales, 488 F.3d 632, 639 (5th Cir. 

2007) (holding that BIA did not abuse its discretion in denying motion to reopen “based 

upon changed country conditions in Fiji indicating an increased risk of violence against 

Indo-Fijians” where the petitioner did not submit an appropriate application for relief); cf.

Palma-Mazariegos v. Keisler

For the foregoing reasons, we will deny the petition for review. 

, 504 F.3d 144, 147 (1st Cir. 2007) (approving of BIA’s 

denial of motion to reopen because it was not accompanied by application for adjustment 

of status).