14-1867 (L) Hassan v. Barr BIA Hom, IJ A088 935 407/408/410/411

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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 13th day of July, two thousand twenty. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 JOSÉ A. CABRANES, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ 12 13 MINHAJ HASSAN, SAIKA HASSAN, 14 SADID HASSAN, SAMARA HASSAN, 15 Petitioners, 1 16 17 v. 14-1867 (L), 18 14-4733 (Con) 19 NAC 20 WILLIAM P. BARR, UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24

1Abrar Hassan has been removed as a petitioner because his removal proceedings were terminated after he adjusted to lawful permanent resident status. In re Abrar Hassan, No. A 088 935 409 (B.I.A. Nov. 26, 2014). 1 FOR PETITIONER: Brian H. Getson, Getson & Schatz, 2 P.C., Philadelphia, PA. 3 4 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 5 General; Kohsei Ugumori, Senior 6 Litigation Counsel; Jesse Lloyd 7 Busen, Trial Attorney, Office of 8 Immigration Litigation, United 9 States Department of Justice, 10 Washington, DC.

11 UPON DUE CONSIDERATION of these petitions for review of

12 two Board of Immigration Appeals (“BIA”) decisions, it is

13 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

14 review in the lead case, 14-1867, is DISMISSED in part and

15 GRANTED in part, and the petition for review in the

16 consolidated case, 14-4733, is DENIED.

17 Petitioners Minhaj Hassan (“Hassan”) and Saika Hassan,

18 natives and citizens of Bangladesh, and Sadid Hassan and

19 Samara Hassan, seek review of two decisions: (1) a May 6,

20 2014, decision of the BIA affirming a May 25, 2012, decision

21 of an Immigration Judge (“IJ”) denying Hassan’s application

22 for asylum, withholding of removal, and relief under the

23 Convention Against Torture (“CAT”) and ordering their

24 removal, and (2) a November 26, 2014, decision of the BIA

25 denying their motion to reopen and reconsider. In re Minhaj

26 Hassan, et al., Nos. A 088 935 407/408/409/410/411 (B.I.A.

2 1 May 6, 2014), aff’g Nos. A 088 935 407/408/409/410/411 (Immig.

2 Ct. N.Y. City May 25, 2012); In re Minhaj Hassan, et al.,

3 Nos. A 088 935 407/408/410/411 (B.I.A. Nov. 26, 2014). We

4 assume the parties’ familiarity with the underlying facts and

5 procedural history in this case.

6 I. Lead Case, 14-1867 7 8 We have reviewed the IJ’s decision as modified and

9 supplemented by the BIA. Wala v. Mukasey,

, 105

10 (2d Cir. 2007).

11 A. Asylum

12 An alien is ineligible for asylum “unless the alien

13 demonstrates by clear and convincing evidence that the

14 application has been filed within 1 year after the date of

15 the alien’s arrival in the United States.” 8 U.S.C.

16 § 1158(a)(2)(B). Hassan’s asylum application was untimely

17 because he entered the United States in October 2008 but did

18 not file for asylum until January 2011. An application may

19 be considered outside the one-year deadline, however, “if the

20 alien demonstrates . . . the existence of changed

21 circumstances which materially affect the applicant’s

22 eligibility for asylum or extraordinary circumstances

3 1 relating to the delay,” id. § 1158(a)(2)(D), and the

2 application is filed “within a reasonable period given those

3 circumstances,”

(a)(4)(ii), (a)(5).

4 Extraordinary circumstances can include ineffective

5 assistance of counsel.

(a)(5)(iii).

6 Our jurisdiction to review the agency’s findings

7 regarding the timeliness of an asylum application and the

8 circumstances excusing the untimeliness is limited to

9 “constitutional claims or questions of law.” See 8 U.S.C.

10 §§ 1158(a)(3), 1252(a)(2)(D). For jurisdiction to attach,

11 such claims must be colorable. Barco-Sandoval v. Gonzales,

12

, 40–41 (2d Cir. 2008). We review constitutional

13 claims and questions of law de novo. Pierre v. Holder, 588

, 772 (2d Cir. 2009).

15 Hassan argues that the agency erred as a matter of law

16 in pretermitting asylum as untimely because the applicable

17 regulations and policies of the Department of Homeland

18 Security (“DHS”) prohibit an arriving alien from filing an

19 asylum application prior to a positive credible fear

20 determination following a credible fear interview, and Hassan

21 did not receive a determination until May 2010, more than a

4 1 year after his arrival in October 2008. See 8 U.S.C.

2 § 1225(b)(1)(A)(ii);

(f). The applicable

3 statutory and regulatory framework prevented him from filing

4 a defensive application with the immigration court prior to

5 a positive credible fear determination and his placement in

6 removal proceedings, but there was no barrier to filing an

7 affirmative asylum application by mailing an application to

8 a service center.

(b). Accordingly, there

9 was no legal impediment to his filing.

10 As to Hassan’s alternate argument that ineffective

11 assistance of counsel excused his untimely filing, the agency

12 did not err in declining to accept that argument because

13 Hassan did not comply with the procedural requirements of

14 such a claim. See Matter of Lozada,

(BIA

15 1988). He complied with some of the procedural requirements

16 in a subsequent motion to reconsider at issue in the

17 consolidated petition but, as discussed later, the BIA did

18 not abuse its discretion by denying that motion as untimely.

19 B. Withholding of Removal

20 We remand to the agency for further consideration of

21 Hassan’s claim for withholding of removal. Withholding of

5 1 removal is a mandatory form of relief that requires the

2 applicant “to establish that his or her life or freedom would

3 be threatened in the proposed country of removal on account

4 of race, religion, nationality, membership in a particular

5 social group, or political opinion.”

(b);

6 see also Ramsameachire v. Ashcroft,

(2d

7 Cir. 2004). Past persecution creates a rebuttable

8 presumption of a future threat.

(b)(1).

9 We review de novo whether the harm an applicant suffered

10 constitutes persecution. Huo Qiang Chen v. Holder,

(2d Cir. 2014); see also Manzur v. U.S. Dep’t of

12 Homeland Sec.,

(2d Cir. 2007).

13 Hassan alleged the following harm: (1) men associated

14 with his wife’s Muslim family kidnapped, beat, and threatened

15 to kill him unless he converted to Islam, which he did;

16 (2) contractors he worked with threatened and beat him

17 because he came from a Hindu family, and the police did not

18 help him when he complained; and (3) Islamic terrorists came

19 to his home, cut his neck, and forcibly tried to circumcise

20 him because he came from a Hindu family and was married to a

21 Muslim. The IJ denied withholding largely on credibility

6 1 grounds, finding that he was not credible and that he failed

2 to submit credible evidence of his mistreatment as needed to

3 meet his burden of proof. The IJ also characterized the harm

4 Hassan experienced as “discrimination and scorn,” slaps,

5 pushes, and a “family problem” that did not rise to the level

6 of persecution. App’x 24.

7 The BIA assumed Hassan’s credibility, did not mention

8 corroboration or burden, and concluded that “the mistreatment

9 [Hassan] described [did] not rise to the level of

10 persecution.” App’x 12. The BIA did not provide any further

11 explanation for this conclusion or discuss whether it had

12 considered all the harm Hassan alleged as opposed to the IJ’s

13 characterization of the harm, given that the BIA assumed

14 Hassan’s credibility when the IJ did not. Such a lack of

15 analysis warrants remand. See Poradisova v. Gonzales, 420

, 77 (2d Cir. 2005) (“Despite our generally deferential

17 review of IJ and BIA opinions, we require a certain minimum

18 level of analysis from the IJ and BIA opinions denying asylum,

19 and indeed must require such if judicial review is to be

20 meaningful.”).

21 Further, Hassan’s allegations of harm, which are

7 1 considered credible because the BIA assumed credibility, were

2 more than mere slaps and pushes. The harm included

3 kidnapping, beatings, and threats that could rise to the level

4 of persecution. See Ivanishvili v. U.S. Dep’t of Justice,

5

(2d Cir. 2006) (addressing distinction

6 between harassment and persecution and remanding because

7 “violent conduct generally goes beyond the mere annoyance and

8 distress that characterize harassment”).

9 Accordingly, because the harm Hassan suffered could rise

10 to the level of persecution and the BIA failed to provide a

11 reasoned analysis, we remand for further consideration of

12 withholding of removal. Because a finding of past

13 persecution would result in a presumption of future

14 persecution, we do not address Hassan’s claim of future

15 persecution. See

(b)(1), (2). Because we

16 remand for further consideration of Hassan’s claim for

17 withholding of removal, we decline to reach the merits of

18 Hassan’s CAT claim at this time. INS v. Bagamasbad,

(1976) (“As a general rule courts and agencies are not

20 required to make findings on issues the decision of which is

21 unnecessary to the results they reach.”). We note that

8 1 nothing precludes the agency from revisiting the CAT claim on

2 remand or from considering the country conditions evidence

3 that Hassan submitted with his motion to reopen in

4 reevaluating withholding of removal.

5 II. Consolidated Case, 14-4733, Motion to Reopen and 6 Reconsider 7 8 We review the BIA’s denial of a motion to reconsider or

9 reopen for abuse of discretion but review factual findings

10 regarding country conditions for substantial evidence. See

11 Jian Hui Shao v. Mukasey,

(2d Cir. 2008)

12 (motion to reopen and country conditions findings); Jin Ming

13 Liu v. Gonzales,

(2d Cir. 2006) (motion to

14 reconsider).

15 A. Motion to Reconsider

16 The BIA did not err in construing Hassan’s motion as a

17 request for reconsideration to the extent that he reiterated

18 arguments from his prior appeal to the BIA about DHS’s delay

19 in issuing a credible fear determination and ineffective

20 assistance of counsel. “A motion for reconsideration is a

21 request that the Board reexamine its decision in light of

22 additional legal arguments, a change of law, or perhaps an

23 argument or aspect of the case which was overlooked.” Jin

9 1 Ming Liu,

(internal quotation marks and

2 citation omitted); see also 8 U.S.C. § 1229a(c)(6)(C) (“The

3 motion shall specify the errors of law or fact in the previous

4 order and shall be supported by pertinent authority.”); 8

(b)(1) (same). Accordingly, because the

6 motion was filed more than 30 days after the prior decision,

7 the BIA did not abuse its discretion in denying the motion as

8 untimely as to these claims. See 8 U.S.C. § 1229a(c)(6)(B);

9

(b)(2).

10 B. Motion to Reopen

11 Hassan’s motion was timely to the extent that it sought

12 reopening because he filed it within 90 days of the May 2014

13 BIA decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

14 § 1003.2(c)(2). The BIA, however, did not err in denying

15 Hassan’s motion to reopen; although the evidence was new in

16 that it postdated his hearing before the IJ, it was not

17 material because it reinforced country conditions evidence

18 already in the record.

19 “[A] motion to reopen shall state the new facts that will

20 be proven at a hearing to be held if the motion is granted,

21 and shall be supported by affidavits or other evidentiary

10 1 material.” 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R.

2 § 1003.2(c)(1). “A motion to reopen proceedings shall not

3 be granted unless . . . that evidence sought to be offered is

4 material and was not available and could not have been

5 discovered or presented at the former hearing.” 8 C.F.R.

6 § 1003.2(c)(1); see also INS v. Abudu,

(1988)

7 (finding that BIA may deny a motion to reopen if “the movant

8 has not introduced previously unavailable, material

9 evidence”).

10 The evidence did not demonstrate new or different

11 conditions for Hindus in Bangladesh, but rather, as the BIA

12 found, it reflected that violence against Hindus, especially

13 during election seasons, has been a longstanding problem in

14 Bangladesh. Hassan’s original country conditions evidence

15 established that religious tensions between Hindus and

16 Muslims have been an ongoing concern in Bangladesh for many

17 years, and that Hindus were targeted during elections before

18 Hassan’s 2012 hearing. See, e.g., Certified Administrative

19 Record at 559, 569–70 (2009 U.S. State Dep’t Human Rights

20 Rep. noting that “[v]iolence against religious and ethnic

21 minorities still occurred” and detailing discrimination and

11 1 attacks on Hindus, their homes, and their places of worship);

2 592 (2010 article noting violence against Hindus during the

3 1992 and October 2001 elections); 625–29 (undated report

4 printed in 2011 stating that “[e]thnic cleansing of

5 minorities” has occurred since 1947 and describing violence

6 against minorities during the October 2001 election, assaults

7 and murders of Hindus, and the burning of Hindu-owned homes

8 in 2002).

9 The evidence that Hassan submitted with his motion to

10 reopen reflected similar conditions. The evidence confirms

11 that religious tension and violence against Hindus existed

12 before Hassan’s hearing, and that societal and political

13 violence flares up around elections. Much of the evidence

14 concerns violence against Hindus after a 2013 execution of an

15 Islamist leader and during the January 2014 election.

16 at 110 (2013 U.S. Comm’n on Int’l Religious Freedom Rep.),

17 112 (2014 U.S. Comm’n on Int’l Religious Freedom Rep.), 145

18 (2013 U.S. State Dep’t Human Rights Rep.). But, as

19 recognized in a 2014 article by an Amnesty International

20 researcher about the January 2014 election violence,

21 “[a]ttacks on Hindus and Bangladesh are nothing new” and

12 1 tensions between Hindus and Muslims date back to at least

2 1947.

at 158–59 (explaining that Hindus are targeted

3 around election seasons and describing serious violence

4 against Hindus during a 2001 election). And while a 2014

5 Human Rights Watch Report states that the January 2014

6 elections “were the most violent in the country’s history,”

7 this violence mostly impacted political actors, and there was

8 little evidence that Hindus were targeted more than any other

9 group.

at 186–91, 198, 252.

10 Thus, on this record, the BIA did not abuse its

11 discretion by declining to reopen. See Abudu,

104 (requiring new and material evidence for reopening); Jian

13 Hui Shao,

(requiring movant to show that new

14 evidence “would likely alter the result in [his] case”).

15 Hassan’s remaining arguments that the BIA improperly took

16 administrative notice of the 2012 State Department Report and

17 failed to fully consider his country conditions evidence are

18 without merit. The BIA was permitted to take notice of the

19 2012 report because those facts were not the sole basis for

20 denying the motion. See Jian Hui Shao, 546 F.3d at 166–68

21 (finding no due process violation when the BIA took

13 1 administrative notice of a State Department Report because it

2 did not rely exclusively on facts in that report to deny

3 relief); cf. Chhetry v. U.S. Dep’t of Justice,

,

4 198 (2d Cir. 2007) (The BIA “exceeds its allowable discretion

5 when . . . [it denies] a motion to reopen based solely on

6 facts of which it took administrative notice”). And the

7 BIA’s decision shows that it considered Hassan’s evidence

8 even if it did not expressly cite to specific incidents or

9 statements. See Jian Hui Shao,

(holding that

10 agency is not required to “expressly parse or refute on the

11 record each individual argument or piece of evidence

12 offered”) (internal quotation marks omitted).

13 For the foregoing reasons, the petition for review in

14 the lead case is DISMISSED in part as to asylum. The lead

15 petition is otherwise GRANTED, the BIA’s decision is VACATED,

16 and case is REMANDED for further proceedings consistent with

17 this decision. The consolidated petition is DENIED. All

18 pending motions and applications are DENIED and stays

19 VACATED.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, 22 Clerk of Court

14