08-1809-ag (L); 08-5722-ag (Con)

Hossain v. Holder

BIA

Nelson, IJ

A070 654 688

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AMENDED 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.

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 7 day of April, two thousand ten. th

PRESENT:

JOHN M. WALKER, JR.,

ROBERT A. KATZMANN,

GERARD E. LYNCH,

 Circuit Judges.

_______________________________________

AKTER HOSSAIN, ALSO KNOWN AS AHMED 

HOSSAIN,

Petitioner, 

08-1809-ag (L);

08-5722-ag (Con)

 v. NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_______________________________________

 

FOR PETITIONER: Barbara J. Brandes, New York, N.Y.

FOR RESPONDENT: R. Alexander Goring, Trial Attorney,

(Tony West, Assistant Attorney General,

Michelle Gorden Latour, Assistant

Director, of counsel), Office of

Immigration Litigation, United States

Department of Justice, Washington, DC
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UPON DUE CONSIDERATION of these consolidated petitions for

review of two Board of Immigration Appeals (“BIA”) decisions, it

is hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for

review are DENIED in part and DISMISSED in part. 

Petitioner Akter Hossain, a native and citizen of

Bangladesh, seeks review of: (1) the March 18, 2008 order of the

BIA affirming the May 19, 2006 decision of Immigration Judge

(“IJ”) Barbara A. Nelson and denying petitioner’s motion to

remand, In re Akter Hossain, No. A070 654 688 (B.I.A. Mar. 18,

2008) aff’g No. A070 654 688 (Immig. Ct. N.Y. City May 19, 2006);

and (2) the October 27, 2008 order of the BIA denying his first

and second motions to reopen, In re Akter Hossain, No. A070 654

688 (B.I.A. Oct. 27, 2008). We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

I. Docket Number 08-1809-ag

As an initial matter, Hossain fails to challenge the BIA’s

denial of his motion to remand in its March 18, 2008 order. 

Therefore, we need not address that issue. 

A. Adjustment of Status

In addition, contrary to Hossain’s arguments, we lack

jurisdiction to review the IJ’s discretionary denial of his

application for adjustment of status. See 8 U.S.C.

§ 1252(a)(2)(B)(I); Ling Yang v. Mukasey, 514 F.3d 278, 280 (2d

Cir. 2008).
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B. Asylum, Withholding of Removal, and CAT relief

Under the circumstances of this case, we review both the

BIA’s and IJ’s opinions. See Yun-Zui Guan v. Gonzales, 432 F.3d

391, 394 (2d Cir. 2005). We review the IJ’s factual findings,

including adverse credibility determinations, under the

substantial evidence standard, and we review de novo questions of

law and the application of law to undisputed fact. See 8 U.S.C.

§ 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.

2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 

Substantial evidence supports the IJ’s adverse credibility

determination, and, accordingly, her denial of Hossain’s asylum

application. Hossain does not challenge several of the agency’s

credibility findings, including: (1) that the false documents he

submitted to the agency from 1996 through 2006 undermined his

credibility; (2) that there was an inconsistency between his

testimony and a document in the record regarding whether he was

detained by the police; and (3) that he omitted from his asylum

application any assertion that he was beaten in 1985 by the

police in Bangladesh. Thus, he has waived any challenge to those

findings, Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545

n.7 (2d Cir. 2005) and they stand as valid bases for the IJ’s

adverse credibility determination, see Shunfu Li v. Mukasey, 529

F.3d 141, 146-147 (2d Cir. 2008). These findings alone provide

substantial evidence for the agency’s adverse credibility
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determination. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

2007). 

Moreover, given the findings described above, there is no

merit to Hossain’s argument that the IJ made an adverse

credibility finding only with respect to his identity and not

with respect to his underlying claim. See Zaman v. Mukasey, 514

F.3d 233, 237-38 (2d Cir. 2008) (finding that the IJ’s analysis

qualified as an “explicit credibility finding” because the IJ

expressed “grave doubts” about the petitioner’s credibility and

cited specific reasons for those doubts). And even if the IJ’s

credibility determination had been so limited, the submission of

a forged document is, absent a satisfactory explanation or

rebuttal, sufficient basis to impeach a petitioner’s general

credibility. See Borovikova v. United States Dep't of Justice,

435 F.3d 151, 157-58 (2d Cir. 2006). To the extent Hossain

argues that the IJ erred in refusing to accept additional

documentation which would have corroborated his identity, that

argument is belied by the record, which indicates that the IJ

accepted such documentation and addressed it in her decision. 

Finally, while Hossain argues that the IJ erred in failing

to evaluate his future persecution claim and his applications for

withholding of removal and CAT relief, because those claims were

based on the same set of facts that the IJ found not to be

credible, they also failed. See Paul v. Gonzales, 444 F.3d 148,

156 (2d Cir. 2006).
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C. Request for Continuance

We review an IJ’s decision to deny a motion for continuance

for abuse of discretion. Sanusi v. Gonzales, 445 F.3d 193, 199

(2d Cir. 2006). Here, the IJ did not abuse her discretion in

declining to continue the proceedings given that she had

previously granted Hossain several continuances. The BIA will

ordinarily grant an unopposed motion to continue the proceedings

pending decision on a family-based visa petition (Form I-130). 

See Matter of Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009). 

However, Hossain’s application for adjustment of status based on

the approval of his first I-130 petition had been denied at the

time he sought a continuance, a factor that the IJ could properly

consider, see id. at 792. Moreover, the IJ was entitled to

consider “evidence of potential fraud,” id., a category that

encompasses the evidence that Hossain had filed his first I-130

under an assumed name.

Hossain’s due process argument fails because an alien has no

due process rights to a discretionary grant of relief such as

adjustment of status. See Yuen Jin v. Mukasey, 538 F.3d 143,

156-57 (2d Cir. 2008). 

II. Docket Number 08-5722-ag

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

of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005)

(per curiam). 
6

A. First Motion to Reopen

As discussed above, we lack jurisdiction to review the IJ’s

denial of Hossain’s application for adjustment of status. It

follows, then, that we also lack jurisdiction of the BIA’s denial

of Hossain’s first motion to reopen to the extent the BIA

declined to reopen for him to pursue his adjustment application

based on the IJ’s prior discretionary denial. See Mariuta v.

Gonzales, 411 F.3d 361, 366 (2d Cir. 2005) (finding that the

Court lacked jurisdiction to review the BIA’s denial of a motion

to reopen where the denial is based on a discretionary

determination of the merits of the underlying application and the

underlying application is subject to the jurisdictional bar of

the Immigration and Nationality Act).

B. Second Motion to Reopen

 There is no dispute that Hossain’s second motion to reopen

was untimely and number-barred. See 8 C.F.R. 

§ 1003.2(c)(2) (providing that an alien seeking to reopen

proceedings may file only one motion to reopen no later than 90

days after the date on which the final administrative decision

was rendered). However, there are no time and number limitations

when a motion to reopen is “based on changed circumstances

arising in the country of nationality or in the country to which

deportation has been ordered, if such evidence is material and

was not available and could not have been discovered or presented

at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). 
7

The BIA did not abuse its discretion by denying Hossain’s

second motion to reopen. Contrary to Hossain’s argument that

reopening was warranted based on the past persecution he suffered

in Bangladesh, the IJ’s denial of his motion was not erroneous

because it was based on the same political involvement that the

BIA and IJ had already found not credible. See Paul, 444 F.3d at

155 n.5 (explaining that when a petitioner has previously been

found not credible as to his alleged past persecution, he “cannot

assert [in his motion to reopen] that he subjectively fears

persecution on [that] basis.”); Kaur, 413 F.3d at 234 (finding

that the BIA does not abuse its discretion in denying a motion to

reopen when the movant does not overcome a prior adverse

credibility determination). Moreover, contrary to Hossain’s

argument that reopening was warranted based on his political

involvement in the United States, the BIA reasonably considered

Hossain’s evidence and found that he failed to demonstrate

changed country conditions in Bangladesh. See Wei Guang Wang v.

BIA, 437 F.3d 270, 273-74 (2d Cir. 2006). 

For the foregoing reasons, these petitions for review are

DENIED in part and DISMISSED in part. As we have completed our

review, the pending motion for a stay of removal in these

petitions is DISMISSED as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk