2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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# Ab do Al S aidi v

. Att y Ge n U S A

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w . v i l l a no v a . e du/thir dc ir c uit_2011/8831 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 0 9

- 43 05

___________ ABDO MUSSED ALI AL SAIDI, a/k/a Abdo M. Alseidi, a/k/a Abdo Mosied Al Seidi, a/k/a Abdo Saudn, a/k/a Abdo Mussad Ali Alssaydi

v. ATTORNEY GENERAL OF THE UNITED STATES

ABDO MUSSED ALI AL SAIDI,

Petitioner

____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (A027

- 468

- 482) Immigration Judge: Honorable Annie S. Garcy

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

May 2, 2011
Before: FUENTES VANASKIE and ROTH , Circuit Judges

(Opinion filed: July 14, 2011 )

___________ OPINION

___________ PER CURIAM

.2

Abdo M ussed A li A l S aidi (“Saidi”) petitions for review of a final order of
removal entered by the Board of Immigration Appeals (“BIA”)

. W e will deny the petition for review

. I.
Saidi , a native and citi zen of Yemen , entered the United States in 1986 on a non
immigrant vis a for business and overstayed the visa‟s short term

. In 1988, the former Immigration and Nat ural ization Service (“INS”) approved a visa p etition f or a lien

r elative filed on Saidi‟s beha lf by his father , a naturalized United States citizen

. Saidi‟s father died, however, before the INS adjudicate d Saidi‟s application to adjust his status to lawful permanent resident

. In 1997, the INS approved an other visa petition for alien
relative , thi s one filed on Saidi‟s behalf by his wife, a lawful permanent resident. In 2003, Saidi applied t o a djust his s tatus based on t h is latest alien

- relative petition

. Saidi the reafter began a series of encounters with the criminal justice system. In 2004, he pled guilty in Maryland to possession and sale of unstamped cigarettes

. Also in 2004, he pled guilty in New York to criminal possession of a forged instrument in the first degree . In 2006 , Saidi pled guilty to another charge in New York , apparently a tax

related offense based on possessing or transporting unstamped cigarettes. In 2006, the Department of Homeland Security (“DHS”) notified Saidi that it had
denied his latest application to adjust status because he failed to submit requested
evidence r egarding the disposition of his criminal offenses and his regist ration with the
National Security Entry/Exit Registra tion System

. Saidi was the n arrested in New York3

in 2006 on new charges , which prompted the DHS to take Saidi into custody and initiate
th ese r emoval proceedings. 1 After two changes of venue, the matter was heard before an Immigration Judge (“IJ”) in Newark, New Jers ey
. Saidi conceded removability for overstay ing his visa, and he applied for asylum, withholding of removal, and Convention
A gainst Torture (“ CAT ”) relief

. Saidi also submitted an application to adjust status based

on his wife‟s approved alien

- relative petition , and he sought a waiver of inadmissibility in light of his criminal convictions

. Saidi premised his application s for relief upon a claim that he fear s future persecution in Yemen because he believes that the government will impute a negative political opinion to him (i) for hav ing lived in the United States , and (ii) due to his
association with his brother , who was murde red in Yemen in 2008 approximately two
months after returning from the United States. Saidi maintains that security or police officers conspired to murder his brother , who allegedly had expressed anti

- government political view s , and Saidi contends that he is similarly situated to his brother.
The IJ denied relief , concluding that Saidi failed to provide sufficient evidence to
establish the motive behind , and his reasons for fear ing persecution due to, his brother‟s
murder. While Saidi claimed that the mu rder amounted to persecut ion of his brother, the
IJ noted that a newspaper article in the record reflects that Saidi‟s brother was not known

1 Saidi posted a bond and was released, following which he was charged in Florida in 2008 with operating a gambling house , and was arrested in New Jersey , also in 2008, allegedly for possessing unstamped cigarettes subject to taxation. Saidi was returned to the DHS‟s c ustody in January 2009.4

as a political opponent of the government, that there is no evidence that his brother was politically active, and t hat his brother , in fact , was killed during an armed robber y. The IJ
observed that Saidi produced no evidence from family in Yemen, including his brother‟s widow, and no objective evidence to confirm that his brother was politically active , or that his fa mily is in danger in Yemen. The IJ added that there is no evidence that the people whom Saidi fears are part of a group that the government is unable or unwilling to control, and indeed the government prosecuted and convicted two men for their role in
the murder of Saidi‟s brother. The IJ also denied relief from removal insofar as Saidi
cited general ly poor country conditions in Yemen

. In addition, t he IJ denied CAT relief
upon finding no evidence that Saidi more likely than not would face torture by or with the acquiescence of government officials. Finally, t he IJ declined to address Saidi ‟s applic ation to adjust his status , observing
that Saidi, through counsel , withdr e w th e application during a hearing on May 21, 2009, in light of unresolved cr imina l charges pending against him

. The IJ also noted that Saidi presented no evidence at the merits hearing to support the adjustment application , thereby effectively abandoning it

. The IJ ordered removal to Yemen.
Saidi filed a post

-

judgment motion to reop en proceedings , arguing that the IJ
should consider his application to adjust status “because [Saidi] now has a trial scheduled
for October 2009, during which any inadmissibility issues will be resolved .” A.R. at 51.
T he IJ referred the motion to reopen to the BIA in light of Saidi ‟s pending appeal.
T he BIA adopted and affirmed the IJ‟s merits decision , and denied the motion to5

reopen
. The BIA found that Saidi failed to show past persecution, failed to establish that
his brother was killed due to a sta tutorily protected ground, and failed to show that he
faces future harm

. The BIA added that Saidi failed to demonstrate that the governmen t would be unable or unwilling to protect him from harm, particularly in light of evidence that two individuals respo nsible for killing his b rother were arrested , and that Saidi‟s family members have visited Yemen without incident

. The BIA also rejected Saidi‟s argument that the IJ erred in failing to consider his application to adjust status , agreeing that the applica tion had been withdrawn

. Finally,
the BIA denied the motion to reopen , concluding that Saidi failed to present any material
evidence that was not previously available or could not have been presented at the time of the merits hearing. Saidi timely filed a petition for review in this Court

. II. We have jurisdi c tion under 8 U.S.C. § 1252(a) (1)

. “ [W]hen the BIA both adopts the findings of the IJ and discusses som e of the bases for the IJ‟ s decision, we have authority to review the decisi ons of both the IJ and the BIA.” Chen v. Ashcroft , 376 F.3d 215, 222 (3d Cir. 2004)

. “ We apply substantial evidence review to agency findings of fact, departing from factual findings only where a reasonable adjudicator would be compelled to arrive at a contrary conclusion. ” Mendez

- Reyes v. Att‟y Gen. , 428 F.3d 187, 191 (3d Cir. 2005)

. We “ uphold the findings of the [ agency ] to the extent that they are supported by reasonable, substantial and probative evidence on the record considered
as a whole [.] ” Kayembe v. Ashcroft , 334 F.3d 231, 234 (3d Cir. 2003)

. Our review of6

the BIA‟s denial of a motion to reopen is for abuse of discretion, “mindful of the „b road ‟ deference that the Supreme Court would have us afford.” Lu v. Ashcroft , 259 F.3d 127, 131 (3d Cir. 2001). Saidi m ust show that the BIA‟s decision to den y his motion to
reopen was arbitrary, irrational, or contrary to law. See Shardar v. Att ‟y Gen. , 503 F.3d 308, 311 (3d Cir. 2007). Saidi first argues that the IJ and the BIA erred in refusing to address the merits o f his application to adjust status. Saidi contends that he is the beneficiary of his wife‟s approved visa petition , and while he acknowledges that he “also requires a waiver under INA Section 245(i) (due to his manner of entry) and a waiver for criminal c onvictions in order to adjust status,” Petitioner‟s Br. at 7, Saidi claims that he is prima facie eligible to adjust, and that the IJ erred in deem ing his application withdrawn. Saidi suggests that he
“never intended” to withdraw t h e application, id. at 8 , and that “at a bare minimum

... his
counsel believed ” that the adjustment application “ was still before the [I J].” Id. at 9

- 10.
S ubstantial evidence s upport s the finding that the adjustment application was withdrawn . Saidi , through his counsel , express ly informed the IJ during hearing s conducted prior to the merits hearing that he would not pursue the application to adjust

status

. Furthermore, even if Saidi might have been confused about the status of his adjustment application prior to the merits hear ing, he failed to present any argument or
evidence at the merits hearing i n support of the application , and he did not seek a
continuance to determine whether the then

- pending criminal charges would render him ineligible to adjust status

. Moreover , Saidi raised no objection when the IJ stated at the7

conclusion of the merits hearing that a decision would be forthcoming regarding the asylum application, and that Saidi would be removed from the United States if relief were
denied because his “application to a djust status has been . . . withdrawn.” A

. R

. at 271.
This record amply supports the determination that the application was withdrawn. 2
Saidi alternatively argues that the BIA erred in denying his motion to reopen so that he could pursue the adjustment application. This argument, however, is premised largely upon the contention that Saidi never actually withdrew the adjustment application. As discussed, we cannot disturb the finding that it was withdrawn. Furthermore , a n alien seeking to reopen proce edings bears the burden to present evidence that “ is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). As the BIA observed, Saidi presented no such
evidence ; rather, he merely noted that he had a trial scheduled, which he vaguely suggested w ould resolve his “ inadmissibility issues

. ” We cannot conclude on this record
that the BIA abused its discretion in refusing to reo pen the removal proceedings. Finally, Saidi argues that the IJ and the BIA erred in rejecting his applications for

2 Saidi “concedes that [the portions of the administrative record cited by the BIA], standing alone, would seem to suggest that [ he ] „withdrew‟ his request for adjustment of status , ” Petitioner‟s Br. at 10, but he argues that “other relevant portions” of the record “suggest otherwise.” Id. There is, however, no indication that the BIA failed to consider the record as a whole; rather, the BIA (and the IJ) simply rendered a finding that Saidi disagrees with. As mentioned, this Court will not disturb the agency‟s finding unless the administrative record compel s a contrary finding. See Mendez

- Reyes , 428 F.3d at 191 . Saidi clearly has not made this showing.8

asylum and withholding of removal. 3 He contends that he testified credibly regarding his
brother‟s murder , and that his evidence establish ed that he has a well

- founded fear that he
will meet the same fate as his b rother if he returns to Yemen. We discern no error.
Saidi did not establish that his brother was persecuted in Yemen on account of a statutorily protected ground

. As the BIA noted, t he record indicates that his brother‟s
murder occurred du ring an armed robbery, and two of the perpetrators were apprehended

a nd convicted. Saidi point s to no objective evidence that would reasonably connect his
fear of returning to Yemen to his brother‟s death , or indeed that would connect his fear to any of t he alleged mis treatment that he claim s ha s befallen those who have returned to Yemen after living in the United States. Furthermore, Saidi offers no argument on appeal

to rebut the finding s that (i) he failed to show that the government in Yemen would be unable or unwilling to prot ect him from harm, and (ii) that his si milarly situated family
members have been unharmed in Yem en
. Th is record supports the denial of S aidi ‟s application for asylum

. “ B ecause withholding of removal carries a higher burden of
p roof than asylum, the request for withholding was properly denied, as well. ” Chen v.
A tt‟y Gen. , -- F.3d

-- , 2011 U.S. App. LEXIS 5358 , at * 14 (3d Cir. Mar. 18, 2011)

. III. For the foregoing reasons , we will deny the petition for review.

3 We agree with respondent that Saidi has waived his CAT claim on appeal in asmuch as he makes only passing reference to the claim in his opening brief without providing any substantive argument in support. See Lie v. Ashcroft , 396 F.3d 530, 532 n.1 (3d Cir. 2005) . Consequently, we do not discuss the CAT claim further.