17-1228 

Akhtar v. Whitaker 

BIA 

 A098 929 525 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 20th day of December, two thousand 

eighteen. 

PRESENT: 

JON O. NEWMAN,

REENA RAGGI, 

RAYMOND J. LOHIER, JR.,

Circuit Judges. 

_____________________________________ 

ARFAN AKHTAR, 

Petitioner, 

v. 17-1228 

 NAC 

MATTHEW G. WHITAKER, ACTING 

UNITED STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Amy N. Gell, Gell & Gell, New 

York, NY. 

FOR RESPONDENT: Chad A. Readler, Principal 

Deputy Assistant Attorney 

General; Paul Fiorino, Senior 

Litigation Counsel; Erik R. 
2 

Quick, Trial Attorney, Office of 

Immigration Litigation, United 

States Department of Justice, 

Washington, DC. 

UPON DUE CONSIDERATION of this petition for review of a 

Board of Immigration Appeals (“BIA”) decision, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is DENIED. 

Petitioner Arfan Akhtar, a native and citizen of 

Pakistan, seeks review of a March 27, 2017, decision of the 

BIA denying his untimely motion to reopen his removal 

proceedings. In re Arfan Akhtar, No. A098 929 525 (B.I.A. 

Mar. 27, 2017). We assume the parties’ familiarity with the 

underlying facts and procedural history in this case. 

We review the denial of a motion to reopen for abuse of 

discretion and related country conditions findings for 

substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d 

138, 168-69 (2d Cir. 2008). An alien may move to reopen 

removal proceedings no later than 90 days after the final 

administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 

8 C.F.R. § 1003.2(c)(2). There is no dispute that Akhtar’s 

2016 motion was untimely because his removal order became 

final in 2014. 8 U.S.C. § 1101(a)(47)(B). But the time 

limitation does not apply to a motion to reopen if it is 
3 

filed to apply for asylum “based on 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 

hearing.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. 

§ 1003.2(c)(3)(ii). Even where there has been a material 

change in country conditions, the BIA may nevertheless deny 

reopening where a movant fails to demonstrate prima facie 

eligibility for relief from removal. See INS v. Abudu, 485 

U.S. 94, 104-05 (1988). To demonstrate prima facie 

eligibility for relief from removal, a movant “must show a 

‘realistic chance’ that []he will be able to obtain such 

relief.” Jian Hui Shao, 546 F.3d at 168. For the reasons 

that follow, we conclude that the BIA did not abuse its 

discretion in denying reopening. 

The BIA did not err in denying reopening on the ground 

that Akhtar failed to demonstrate that the harm he feared 

was on account of a protected ground as required for asylum 

and withholding of removal. Id.; 8 U.S.C. 

§§ 1158(b)(1)(B)(i), 1231(b)(3)(A). To establish 

eligibility for asylum and withholding of removal in the 

absence of past persecution, an applicant must demonstrate 
4 

a well-founded fear or likelihood of future persecution on 

account of “race, religion, nationality, membership in a 

particular social group, or political opinion.” Rodas 

Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010) (quoting 

8 U.S.C. § 1158(b)(1)(B)(i)). 

First, Akhtar does not challenge the BIA’s 

determination that he failed to submit evidence that 

Pakistanis who have lived in the United States constitute a 

cognizable particular social group. He has therefore failed 

to demonstrate error in the BIA’s determination that he did 

not establish his prima facie eligibility for asylum or 

withholding of removal based on that alleged protected 

ground. See Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 

2014) (observing that a particular social group must be 

legally cognizable); Norton v. Sam’s Club, 145 F.3d 114, 

117 (2d Cir. 1998) (“Issues not sufficiently argued in the 

briefs are considered waived and normally will not be 

addressed on appeal.”). 

Second, the BIA reasonably concluded that the harm 

Akhtar feared from his brother was due to a personal 

vendetta and was not because of Akhtar’s political opinion. 

See Matter of N–M–, 25 I. & N. Dec. 526, 531-32 (B.I.A. 
5 

2011) (suggesting that where the alleged persecutor acts 

“solely out of personal revenge or a desire to avoid the 

exposure of a lucrative scheme of corruption, without a 

significant concern about the alien’s political beliefs, 

perceived or otherwise,” the claim cannot satisfy 

the nexus requirement). Akhtar did not assert that he 

cooperated against, or was threatened by, his brother 

because he opposed corruption or held any political 

opinion. Indeed, Akhtar participated in the fraud with his 

brother. The BIA therefore reasonably concluded that Akhtar 

failed to demonstrate his prima facie eligibility for 

asylum or withholding of removal based on his political 

opinion. Id.; Jian Hui Shao, 546 F.3d at 168. 

Nor did the BIA err in determining that Akhtar failed 

to demonstrate his prima facie eligibility for CAT relief 

based on his fear of harm from his brother. Jian Hui Shao, 

546 F.3d at 168. The BIA also reasonably declined to credit 

Akhtar’s father’s letter—the only independent evidence that 

Akhtar’s brother had threatened Akhtar—because it was 

authored by an interested witness unavailable for cross 

examination. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d 

Cir. 2013) (deferring to agency’s determination that 
6 

spouse’s letter was entitled to “very little evidentiary 

weight” “because it was unsworn and because it was 

submitted by an interested witness”). The BIA did not err 

in finding that the harassment complaint and Pretrial 

Services memorandum did not establish a likelihood of 

torture because they were based on threats Akhtar’s brother 

made to Akhtar’s nephew rather than Akhtar. Id. at 332. 

Moreover, the BIA did not err by declining to credit 

Akhtar’s own assertions concerning his brother’s threats in 

light of the underlying adverse credibility determination. 

Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146 (2d Cir. 

2007); see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d 

Cir. 2007) (“So a single false document or a single 

instance of false testimony may (if attributable to the 

petitioner) infect the balance of the alien’s 

uncorroborated or unauthenticated evidence.”). Because the 

BIA reasonably accorded minimal weight to the only evidence 

of threats, it did not err in concluding that Akhtar failed 

to demonstrate his prima facie eligibility for CAT relief. 

See In re M–B–A–, 23 I. & N. Dec. at 479-80; Jian Hui Shao, 

546 F.3d at 168. 

 
7 

Because the BIA did not abuse its discretion in denying 

reopening based on Akhtar’s failure to establish his prima 

facie eligibility for relief, we do not reach the BIA’s 

alternative conclusion that Akhtar failed to demonstrate a 

material change in country conditions. See INS v. Bagamasbad, 

429 U.S. 24, 25 (1976) (“As a general rule courts and agencies 

are not required to make findings on issues the decision of 

which is unnecessary to the results they reach.”). 

For the foregoing reasons, the petition for review is 

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

that the Court previously granted in this petition is VACATED, 

and any pending motion for a stay of removal in this petition 

is DISMISSED as moot. Any pending request for oral argument 

in this petition is DENIED in accordance with Federal Rule of 

Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

34.1(b). 

FOR THE COURT: 

Catherine O’Hagan Wolfe 

Clerk of Court