Chowdhury v. Mukasey, (2nd Cir. 2009)
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07-4616-ag
Chowdhury v. Mukasey
BIA
A70 529 229
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE
CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
"(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
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DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 19 th day of June, two thousand nine.
PRESENT:
HON. ROGER J. MINER,
HON. ROSEMARY S. POOLER,
HON. REENA RAGGI,
Circuit Judges.
GOLAM RABBEE CHOWDHURY,
Petitioner,
v. 07-4616-ag
NAC
ERIC H. HOLDER, JR., ATTORNEY GENERAL, 1
Respondent.
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Eric H. Holder, Jr., is automatically substituted as the respondent in
this case.
FOR PETITIONER: Visuvanathan Rudrakumaran, New York, New York.
FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General, Cindy S. Ferrier, Senior Litigation Counsel, Joseph A.
O'Connell, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Golam Rabbee Chowdhury, a native and citizen of Bangladesh, seeks review of the September 24, 2007 order of the BIA denying his motion to reopen. In re Golam Rabbee Chowdhury, No. A70 529 229 (B.I.A. Sept. 24, 2007). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We review the BIA's denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). "An abuse of discretion may be found . . . where the [BIA's] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the BIA has acted in an arbitrary or capricious manner." Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted). In reviewing the BIA's denial of a motion to reopen, we remain mindful of the Supreme Court's admonition that motions to reopen are "disfavored." See Maghradze v. Gonzales, 462 F.3d 150, 154 (2d Cir. 2006) (citing INS v. Abudu, 485 U.S. 94, 107 (1988)).
It is undisputed that Chowdhury's May 2007 motion to reopen was the third such motion he filed with the agency.
Moreover, the instant motion was filed over two years after the previous BIA decision, the March 2005 decision denying his second motion to reopen , and nearly nine years after he withdrew his original asylum application and accepted voluntary departure in July 1998. Therefore, the BIA properly observed that Chowdhury's motion was barred by the time and numerical restrictions applied to motions to reopen, unless he established that he was newly eligible for asylum based on changed circumstances arising in Bangladesh.
See 8 C.F.R. § 1003.2(c)(3)(ii).
We find that the BIA did not abuse its discretion in concluding that the evidence Chowdhury submitted did not establish that he might face harm in Bangladesh based on his relationship to his brother Riad. See Kaur, 413 F.3d at 233-34. Even assuming the truth of the allegations contained in the evidence he submitted, there was no error in the BIA's conclusion that the fact that his brother Neaz was harmed did not establish that Chowdhury was prima facie eligible for asylum, particularly when he had not been to Bangladesh for over sixteen years. 2 Cf. Jian Xing Huang v.
INS, 421 F.3d 125, 129 (2d Cir. 2005) (noting in the context of the BIA's denial of asylum on the merits, that "Huang's testimony that his sister-in-law had been forcibly sterilized . . . would not be probative [as to his own fear of sterilization] even if believed because [he] omitted any evidence that might bear on whether [he] might be in similar circumstances"); see also Poradisova v. Gonzales, 420 F.3d 70, 80 (2d Cir. 2005) (noting that the experiences of similarly situated family and friends are relevant to whether an applicant's fear is well-founded) . Moreover, this finding demonstrates that, contrary to Chowdhury's assertion, the BIA did not mischaracterize his fear of return as a fear of general violence in Bangladesh, but 2 While the BIA did not explicitly use the term "prima facie," we find no merit in Chowdhury's argument that the BIA employed an improper standard. evaluated his claim that he would be singled out for persecution. While it is possible that a reasonable adjudicator could have reached a different conclusion as to Chowdhury's prima facie eligibility for asylum, it does not follow that the BIA therefore abused its discretion in denying his motion to reopen. See Kaur, 413 F.3d at 233-34.
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:
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