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 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 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, Assistant
2

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

10 underlying facts and procedural history of the case.

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

12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006). An alien who has been ordered removed may

14 file one motion to reopen, but must do so within 90 days of

15 the final administrative decision. 8 U.S.C. § 1229a(c)(7).

16 Here, the BIA did not abuse its discretion by denying

17 Petitioners’ motion to reopen, as their motion was filed in

18 February 2009, more than one year after the entry of their

19 August 2008 final order of removal. See id.; 8 C.F.R.

20 § 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

10 Cir. 2007) (denying the petition for review because

11 petitioner failed to challenge a dispositive ground for

12 relief). 

13 Moreover, the BIA reasonably concluded that Petitioners

14 failed to establish changed country conditions in Pakistan

15 such that the time and number limits on their motion to

16 reopen should be excused. See 8 U.S.C.

17 § 1229a(c)(7)(C)(ii). The evidence Petitioners submitted in

18 support of their motion indicated deteriorating conditions

19 in Pakistan. However, Petitioners fail to point to evidence

20 in the record establishing a material change; the background

21 documentation submitted in support of the original

22 application provided similar information regarding sectarian

23 violence in Pakistan. See Matter of S-Y-G-, 24 I. & N. Dec
4

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.

10 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (holding that when

11 the BIA considers relevant evidence of country conditions in

12 evaluating a motion to reopen, this Court reviews the BIA’s

13 factual findings under the substantial evidence standard). 

14 Given the BIA’s explicit references to the

15 documentation submitted with the motion to reopen, a

16 reasonable fact-finder would not be compelled to conclude

17 (as Petitioners contend) that the BIA ignored any material

18 evidence that Petitioners submitted. See Wei Guang Wang v.

19 BIA, 437 F.3d 270, 275 (2d Cir. 2006) (holding that the BIA

20 is not required to “expressly parse or refute on the record

21 each individual argument or piece of evidence offered by the

22 petitioner” as long as it “has given reasoned consideration
5

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 facie eligible for relief. See 8 U.S.C.

10 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).

11 Petitioners do not challenge the BIA’s remaining findings.

12 For the foregoing reasons, the petition for review is

13 DENIED. As we have completed our review, any stay of

14 removal that the Court previously granted in this petition

15 is VACATED, and any pending motion for a stay of removal in

16 this petition is DISMISSED as moot. Any pending request for

17 oral argument in this petition is DENIED in accordance with

18 Federal Rule of Appellate Procedure 34(a)(2), and Second

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT:

21 Catherine O’Hagan Wolfe, Clerk

22