10-347-ag

Hussain v. Holder BIA A078 698 652 A078 698 653 A078 698 654 A078 698 655 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARYORDER 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 17 day of December, two thousand ten. th 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 JON O. NEWMAN, 10 RALPH K. WINTER, 11 Circuit Judges . 12

_______________________________________ 13 14 ABID N. HUSSAIN, SHAHIDA PARVEEN, 15 QURAT UL AIN ABID, AMBREEN ABID 16 Petitioners , 17 18 v. 10-347-ag 19 NAC 20 ERIC H. HOLDER, JR., UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent . 23

_______________________________________ 24 25 FOR PETITIONERS: H. Raymond Fasano, New York, New 26 York. 27 28 FOR RESPONDENT: Tony West, Assistant Attorney 29 General; Linda S. Wernery, Assistant2 1 Director; Theodore C. Hirt, 2 Attorney, Office of Immigration 3 Litigation, Civil Division, United 4 States Department of Justice, 5 Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 decision of the Board of Immigration Appeals (“BIA”), it is 3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 4 review is DENIED. 5 Petitioners, all natives and citizens of Pakistan, seek 6 review of a January 28, 2010, order of the BIA denying their 7 motion to reopen their removal proceedings. In re Hussain, 8 et. al. , Nos. A078 698 652/653/654/655 (B.I.A. Jan. 28, 9 2010). We assume the parties’ familiarity with the 1 0 underlying facts and procedural history of the case. 1 1 We review the BIA’s denial of a motion to reopen for 1 2 abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 1 3 (2d Cir. 2006). An alien who has been ordered removed may 1 4 file one motion to reopen, but must do so within 90 days of 1 5 the final administrative decision. 8 U.S.C. § 1229a(c)(7). 1 6 Here, the BIA did not abuse its discretion by denying 1 7 Petitioners’ motion to reopen, as their motion was filed in 1 8 February 2009, more than one year after the entry of their 1 9 August 2008 final order of removal. See id. ; 8 C.F.R. 2 0 § 1003.2(c)(2).3 1 Alternatively, the BIA acted within its discretion in 2 denying the motion by reason of Petitioners’ failure to 3 comply with the requirements for reopening. As the BIA 4 found, Petitioners failed to submit an asylum application in 5 conjunction with their motion to reopen, as required under 6 the regulations. See 8 C.F.R. § 1003.2(c)(1). Petitioners 7 have failed to challenge this dispositive ground for the 8 denial of reopening. The petition for review is therefore 9 denied. See Steevenez v. Gonzales , 476 F.3d 114, 118 (2nd 1 0 Cir. 2007) (denying the petition for review because 1 1 petitioner failed to challenge a dispositive ground for 1 2 relief). 1 3 Moreover, the BIA reasonably concluded that Petitioners 1 4 failed to establish changed country conditions in Pakistan 1 5 such that the time and number limits on their motion to 1 6 reopen should be excused. See8 U.S.C. 1 7 § 1229a(c)(7)(C)(ii). The evidence Petitioners submitted in 1 8 support of their motion indicated deteriorating conditions 1 9 in Pakistan. However, Petitioners fail to point to evidence 2 0 in the record establishing a material change; the background 2 1 documentation submitted in support of the original 2 2 application provided similar information regarding sectarian 2 3 violence in Pakistan. See Matter of S-Y-G- , 24 I. & N. Dec4 1 247, 253 (BIA 2007) (finding that, “[i]n determining whether 2 evidence accompanying a motion to reopen demonstrates a 3 material change in country conditions that would justify 4 reopening, we compare the evidence of country conditions 5 submitted with the motion to those that existed at the time 6 of the merits hearing below”). Substantial evidence thus 7 supports the BIA’s determination that Petitioners failed to 8 establish changed country conditions. See 8 C.F.R. 9 § 1003.2(c)(2), (c)(3)(ii); see also Jian Hui Shao v. 1 0 Mukasey , 546 F.3d 138, 169 (2d Cir. 2008) (holding that when 1 1 the BIA considers relevant evidence of country conditions in 1 2 evaluating a motion to reopen, this Court reviews the BIA’s 1 3 factual findings under the substantial evidence standard). 1 4 Given the BIA’s explicit references to the 1 5 documentation submitted with the motion to reopen, a 1 6 reasonable fact-finder would not be compelled to conclude 1 7 (as Petitioners contend) that the BIA ignored any material 1 8 evidence that Petitioners submitted. See Wei Guang Wang v. 1 9 BIA , 437 F.3d 270, 275 (2d Cir. 2006) (holding that the BIA 2 0 is not required to “expressly parse or refute on the record 2 1 each individual argument or piece of evidence offered by the 2 2 petitioner” as long as it “has given reasoned consideration5 1 to the petition, and made adequate findings”); see also Xiao 2 Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 337 n.17 (2d 3 Cir. 2006) (presuming that the agency “has taken into 4 account all of the evidence before [it], unless the record 5 compellingly suggests otherwise”). 6 Because the BIA did not abuse its discretion by denying 7 Petitioners’ motion as untimely, see Ali , 448 F.3d at 517, 8 we need not reach Petitioners’ argument that they are prima 9 facieeligible for relief. See 8 U.S.C. 1 0 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). 1 1 Petitioners do not challenge the BIA’s remaining findings. 1 2 For the foregoing reasons, the petition for review is 1 3 DENIED. As we have completed our review, any stay of 1 4 removal that the Court previously granted in this petition 1 5 is VACATED, and any pending motion for a stay of removal in 1 6 this petition is DISMISSED as moot. Any pending request for 1 7 oral argument in this petition is DENIED in accordance with 1 8 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 9 Circuit Local Rule 34.1(b). 2 0 FOR THE COURT: 2 1 Catherine O’Hagan Wolfe, Clerk 2 2