18

- 2671 Bin Rehman v. Wilkinson BIA A 098 424 207/208 

### 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 TO 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**  1 **for the Second Circuit, held at the**  **Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,**  3 **on the 1**  **1 t**  **h da**  **y of F**  **e b**  **r u**  **a r**  **y , two thousand**  **twenty -**  **o n**  **e .**  4 5 **PRESENT:** 6 **DENNIS JACOBS ,**  7 **ROSEMARY S .**  **POOLER ,**  8 **GERARD E. LYNCH ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **MALIK NAVEED BIN REHMAN, ZAHIDA** 13 **ALTAF ,**  14 **Petitioner s**  **,** 15 16

**v. 18** 

**- 2671**  17 **NAC** 18 **ROBERT M. WILKINSON ,**  **ACTING** 19 **UNITED STATES ATTORNEY GENERAL**  **,** 20 **Respondent .**  **1** 21

**_____________________________________** 22 23 **FOR PETITIONER S**  **:** Glenn L. Formica , New Haven, CT

. 24 25 **FOR RESPONDENT:** Joseph H. Hunt , Acting Assistant 26 Attorney General; Shelley R. Goad , 27 Assistant Director ; Russell J.E. 28

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted as Respondent

.2 Verby , Senior Litigation Counsel , 1 Office of Immigration Litigation , 2 United States Department of 3 Justice, Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a 6
Board of Immigration Appeals (“BIA”) decision, it is hereby 7

ORDER ED, ADJUDGED, AND DECREED that the petitio n for review 8

is DENIED. 9

Petitioner s Malik Naveed Bin Rehman and Zahida Altaf, 10

native s and citizen s of Pakistan , seek review of a n August 11

29, 2018 , decision of the BIA , denying their motion to reopen

. 12

In re Malik Naveed Bin Rehman, Zahida Altaf , No s . A 098 424 13

207/208 (B.I.A. Aug. 29, 2018 ). We assume the parties’ 14
familiarity with the underlying facts and procedural history. 15
The applicable standards of review are well established. 16

S ee Jian Hui Shao v. Mukasey , 546 F.3d 138, 16 8

- 6 9 (2d Cir. 17

2008). In their motion to reopen, Petitioners argued that , 18

as asserted in their underlying asylum application, they 19
continue to fear that Altaf’s family will harm them because 20
the family disapproved of their marriage due to Bin Rehman’s 21
caste. They argued that honor killings were increasing in 22

Pakistan and that their former counsel was ineffective 23

because he failed to provide the immigration judge (“IJ”) 24
evidence they had submitted in support of their Canadian 253 asylum application, letters from their relatives, or evidence 1
of honor killings in Pakistan

. 2
It is undisputed that Petitioners’ 2018 motion was 3
untimely because it was filed more than seven years after 4

their removal order became final in 2010

. See 8 U.S.C. 5

§ 1 229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although the 6

time limitation on a motion to reopen may be excused if the 7
motion seeks to apply for asylum based on a material change 8

in conditions in the country of removal or alleges a valid 9

claim of ineffective assistance of counsel, 8 U.S.C. 10

§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii); 11

Iavorski v. U.S. INS , 232 F.3d 124, 134

– 35 (2d Cir. 2000), 12
the BIA did not err in finding that Petitioners’ evidence was 13

insufficient to excuse the time limit. 14
“[T]o prevail on a motion to reopen alleging changed 15
country conditions where the persecution claim was previously 16
denied based on an adverse credibility finding

. . . , the 17
[movant] must either overcome the prior determination or show 18
that the new claim is independent of the evidence that was 19

found to be not credible.” Matter of F

- S

- N

- , 28 I. & N. Dec. 20

1, 3 (BIA 2020); see also Kaur v. BIA , 413 F.3d 232, 234 (2d 21
Cir. 2005) (“[E]vidence submitted by petitioner in support of 224 . . . motion was not ‘material’ because it did not rebut the 1
adverse credibility finding that provided the bas is for the 2
IJ’s denial of petitioner’s underlying asylum application.”). 3

Petitioner s have abandoned any challenge to the BIA’s finding 4
that they did not overcome the agency’s underlying adverse 5
credibility determination by not arguing this issue in their 6

brief

. See Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1, 7
545 n.7 (2d Cir. 2005). Regardless, that finding was not in 8

error because the evidence they submitted in support of 9
reopening did not address or explain the inconsistent 10

evidence underlying the adverse credibility determination

. 11
Because this finding is dispositive , see Kaur , 413 F.3d at 12

234; Matter of F

- S

- N

- , 28 I. & N. Dec. at 3 , we do not reach 13
the BIA’s alternative bases for denying the motion, see INS 14

v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As a general rule 15
courts and agencies are not required to make findings on 16
issues the decision of which is unnecessary to the results 17

they reach.”). 18
We also find no error in the BIA’s decision declining to 19

excuse the time limit based on Petitioners’ claim of 20
ineffective assistance. Petitioners failed to show that they 21
exercised the requisite due diligence because they did not 225 demonstrate that they took any action for over seven years 1

after the BIA issued its order of removal

. See Rashid v. 2

Mukasey , 533 F.3d 127, 13 2 (2d Cir. 2008) (providing that 3
petitioners are required to show the exercise of due diligence 4
during “both the period of time before the ineffective 5

ass istance of counsel was or should have been discovered and 6
the period from that point until the motion to reopen is 7

filed”) ; see also Jian Hua Wang v. BIA , 508 F.3d 710, 715 (2d 8

Cir. 2007) ( collecting cases for the proposition that “a 9
petitioner who waits two years or longer to take steps to 10

reopen a proceedings ha s failed to demonstrate due 11
diligence”). The record belies Petitioners’ contention that 12

they were unaware of counsel’s alleged ineffective assistance 13
given their statements at their hearing before the IJ blaming 14
counsel for failing to subm it certain evidence. Petitioners 15

also do not demonstrate the requisite prejudice by failing to 16

submit either the missing evidence or evidence rebutting the 17
underlying credibility determination. See Rabiu v. INS , 41 18

F.3d 879, 882

– 83 (2d Cir. 1994) (providing that actual 19
prejudice requires a showing of prima facie eligibility for 20

relief). 216 Accordingly, because Petitioners did not rebut the 1
agency’s underlying adverse credibility determination or 2
satisfy the re quirements for an ineffective assistance claim, 3
the BIA did not abuse its discretion in denying their motion 4
to reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i); 5

8 C.F.R. § 1003.2(c)(2); see also Kaur , 413 F.3d at 234. 6
For the foregoing reasons, th e petition for review is 7

DENIED . All pending motions and applications are DENIED and 8

stays VACATED. 9

FOR THE COURT: 10 Catherine O ’ Hagan Wolfe , 11 Clerk of Court 12