314 F. App'x 512

Ashraf MOHAMMAD, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 08-1206.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) Feb. 25, 2009.

Opinion filed: Feb. 25, 2009.

Carla R. McBeath, Esq., Fort Lee, NJ, for Petitioner.

Virginia M. Lum, Esq., United States Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.

Before: AMBRO, FISHER and JORDAN, Circuit Judges.

*513OPINION

PER CURIAM.

Petitioner Mohammad Ashraf1 seeks review of a final decision by the Board of Immigration Appeals (“BIA”) denying a motion to reopen his removal proceedings. For the reasons that follow, we will deny the petition.

I. Background

Ashraf is a native and citizen of Pakistan who entered the United States without inspection in July 1995. In October 1995, the Immigration Judge (“IJ”) ordered Ashraf removed in absentia, due to his failure to appear at his hearing. Nearly ten years later, Ashraf filed a motion to reopen his case, seeking to submit an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The motion was granted and Ashraf filed an application. However, he subsequently withdrew it and was granted voluntary departure. See A.R. 145.

In November 2006, shortly before his voluntary departure date, Ashraf filed a second motion to reopen. He argued that country conditions in Pakistan for members of his political party (the Muslim League) had materially changed, and as a result, he should be permitted to file a new application for asylum, withholding of removal and protection under the CAT. In support, he appended several undated, partially-illegible news articles concerning, inter alia, the Muslim League’s political opposition to the Pakistani government and the killing and jailing of certain political opposition leaders.2 Ashraf also provided four virtually identical affidavits from Muslim League members in Pakistan, attesting that “if you [presumably, Ashraf] come back to Pakistan the government will lock up to you in a jail immediately” and “you will have maximum 30 years imprisonment and you will never see to any one.”3 A.R. 94, 96, 97.

On December 12, 2006, the IJ denied Ashrafs second motion to reopen. The IJ held that Ashrafs evidence showed only that “the present position of the Pakistan Muslim League in Pakistan is not good now,” but did not reflect whether conditions had materially changed since his last appearance before the court in December 2005, as required by 8 C.F.R. § 1003.23(b)(4)(i). In addition, he concluded that Ashrafs evidence did not demonstrate a pattern or practice of persecution4 *514of Muslim League members because it did not show that the acts were committed by Pakistan’s government or by forces that the government was unwilling or unable to control. Thus, the IJ held that Ashraf failed to present material evidence showing that country conditions in Pakistan sufficiently changed so that he would now be prima, facie eligible for asylum or withholding of removal.

Ashraf appealed the IJ’s decision. In a December 26, 2007 decision, the BIA dismissed the appeal. This petition for review followed.

II. Analysis

In immigration proceedings, we review the BIA’s findings of fact for substantial evidence, and the ultimate decision to reject a motion to reopen for abuse of discretion.5 See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002). The BIA’s decision is entitled to “broad deference,” see Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003), and will be upheld unless it was “arbitrary, irrational, or contrary to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994).

An alien may file only one motion to reopen, and it must be filed no later than ninety days after the final administrative decision was rendered, see 8 C.F.R. § 1003.23(b)(3), unless it is “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding.” 8 C.F.R. § 1003.23(b)(4). A motion to reopen may also be denied if it does not establish that the applicant is prima facie eligible for relief. See Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir.2004). Establishing pri-ma facie eligibility requires production of objective evidence showing a “reasonable likelihood” of establishing that relief should be granted. See id. at 563-64. Even if the movant successfully establishes prima facie eligibility, a motion to reopen may be denied in the agency’s discretion. See 8 C.F.R. §§ 1003.2(a), 1003.23(b)(3). Thus, there are “three independent grounds on which the BIA might deny a motion to reopen — failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought.” INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992).

Here, the BIA rested its decision on the first independent ground — a failure to establish a prima facie case for relief. The BIA considered Ashraf s evidence, and affirmed the IJ’s conclusions that the affidavits and articles Ashraf submitted were insufficient to show that he faces a particularized risk of harm in Pakistan, or that there exists a general pattern or practice of persecution of members of the Muslim League in Pakistan. Indeed, the BIA expressed particular skepticism of Ashrafs claim that members of the Muslim League *515would be subject to a pattern or practice of persecution, because the affiants, all Muslim League officers, are located in Pakistan and did not attest to personally suffering any harm.

Ashraf argues that the BIA improperly required him to “prove every element of asylum in the motion papers.” Although it would have been helpful for the BIA to provide additional clarity in its legal analysis, we disagree with Ashrafs contention. The BIA concluded that Ashraf “made no ... showing” regarding a pattern or practice of persecution of Muslim. League members, that the evidence did not “reflect” that Ashraf, as a member of the Muslim League, would more likely than not be persecuted in Pakistan, and that his claims were “vague, generalized, and questionable.” These statements indicate that the BIA did not require Ashraf to prove his ultimate case, but instead examined his initial showing to determine whether the evidence was sufficient to establish a pri-ma facie case. “Agency action is entitled to a presumption of regularity.” Kamara v. Att’y Gen., 420 F.3d 202, 212 (3d Cir.2005). Ashrafs arguments are insufficient to overcome that presumption and show that the BIA held his motion to reopen to an inappropriately high standard of proof.

Ashraf also argues that his motion was properly supported by evidence of materially changed conditions and was based upon “events that had occurred since December 20, 2005 (the date of the [previous] hearing [before the IJ]).”6 However, because the BIA chose to rest its decision on the independent ground that Ashraf failed to present a prima facie case for relief, this argument is to no avail.7

III. Conclusion

We have considered the record and conclude that substantial evidence supports the BIA’s conclusion that Ashraf failed to show prima facie eligibility for relief based upon a well-founded fear of future persecution. Ashraf did not satisfy his heavy burden of showing that the BIA abused its discretion or arbitrarily denied his second motion to reopen. We will therefore deny the petition for review.

Mohammad v. Attorney General of the United States
314 F. App'x 512

Case Details

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Mohammad v. Attorney General of the United States
Decision Date
Feb 25, 2009
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314 F. App'x 512

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United States

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