                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-9-2008

Fazil v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3791




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-3791


                                  MUBASHIR FAZIL,
                                              Petitioner

                                            v.

                              ATTORNEY GENERAL OF
                               THE UNITED STATES,
                                             Respondent


                           On Review of a Decision of the
                           Board of Immigration Appeals
                             (Agency No. A79-708-046)
                      Immigration Judge: Honorable Annie Garcy


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 23, 2008

               Before: AMBRO, FISHER and JORDAN, Circuit Judges

                                  (Filed: May 9, 2008)


                                        OPINION


PER CURIAM

      Petitioner, Mubashir Fazil, petitions for review of a final order of the Board of

Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition.

      Fazil is a citizen and native of Pakistan who entered the United States in
November 2000 with a B-2 visa. He was charged as an overstay and placed in removal

proceedings on February 13, 2003. Fazil thereafter requested asylum, withholding of

removal and relief under the Convention Against Torture (“CAT”). In an interlocutory

decision, the Immigration Judge (“IJ”) denied the asylum application as untimely. At a

subsequent merits hearing, Fazil’s attorney withdrew the request for CAT relief and

proceeded solely on the application for withholding of removal. At the conclusion of the

hearing, the IJ denied Fazil the requested relief.

       While the IJ noted concern regarding the plausibility of some of Fazil’s stories and

the veracity of parts of his testimony, she did not render an adverse credibility

determination. Instead, the IJ concluded that Fazil was not entitled to withholding of

removal because he failed to establish that the persecution he fears in the future is on

account of any protected ground. The IJ noted that the only possible applicable ground

would be on account of political opinion. Although the Supreme Court recognized the

possibility of imputed political opinion in INS v. Elias Zacharias, 502 U.S. 478 (1992),

the IJ nonetheless determined that Fazil failed to establish this ground as well.

Accordingly, Fazil was denied relief in the form of withholding of removal, but was

granted voluntary departure.

       The BIA affirmed the IJ’s decision in an order dated October 17, 2005. The BIA

stated that “[e]ven assuming, without deciding, that [Fazil] testified credibly, we find that

[Fazil] failed to establish a ‘clear probability’ of persecution on account of a protected

ground.” See BIA Order at 1.

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       Fazil thereafter filed a motion to reopen/remand with the BIA. In that motion,

Fazil asserted that he had married a United States citizen on June 7, 2004, that his wife

had filed an I-130 petition on his behalf on June 14, 2004, and that the petition was still

pending. Citing Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), Fazil offered the

pending I-130 petition as a basis for reopening the proceedings to allow him to seek

adjustment of status. Fazil further asserted that reconsideration of the BIA’s order of

dismissal was warranted given the evidence of harm to petitioner’s brother and the

attempted kidnapping of his children – acts which, according to Fazil, demonstrate that

the extremist group he fears is still active in Pakistan and is a group over which the

government is unable or unwilling to exercise control.

       Fazil’s motion to reopen fared no better than his original appeal and was denied by

the BIA in an order dated February 15, 2006. The BIA concluded that its decision in

Matter of Velarde was not pertinent to Fazil’s case given the fact that he knew his visa

application was pending when the proceedings were still with the IJ, yet he failed to

pursue the requested relief at that time or to request any other action. See BIA Order at 1,

citing transcripts at 49-52. Additionally, the BIA concluded that reopening under the

holding in Velarde was not warranted as Fazil’s motion was not supported by a completed

adjustment application or sufficient evidence of the bona fides of the marriage. The BIA

further determined that Fazil was not entitled to reconsideration of its determination

finding him ineligible for withholding of removal given his failure to identify any error in

the IJ’s finding, that he failed to demonstrate that any of the harm he allegedly

                                              3
experienced was on account of a protected ground, and given his failure to address noted

concerns regarding the veracity of his claim.

         Fazil, through counsel, filed a timely petition for review with the United States

Court of Appeals for the Second Circuit together with a motion for a stay of removal.

Upon stipulation of the parties and in accordance with INA § 242(b)(2), 8 U.S.C. §

1252(b)(2), the Second Circuit transferred the petition to this Court in light of the fact that

the administrative proceedings were conducted and completed by an IJ sitting in Newark,

New Jersey. We previously denied Fazil’s stay motion and his petition for review is now

ripe for disposition.

         Fazil limits his petition for review to a challenge of the BIA’s denial of his

reconsideration motion and its original conclusion that he failed to establish that he is

being targeted on account of an imputed political opinion. Initially, we note our

agreement with respondent’s contention that we lack jurisdiction to consider the merits of

Fazil’s withholding of removal claim because he did not timely appeal the BIA’s decision

of October 17, 2005. See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1). Thus, our review

extends only to the BIA’s order denying Fazil’s motion seeking reconsideration. See

Stone v. INS, 514 U.S. 386, 405 (1995); Nocon v. INS, 789 F.2d 1028, 1033-34 (3d Cir.

1986).

         A motion for reconsideration must “specify the errors of law or fact in the previous

order and shall be supported by pertinent authority.” 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R.

§ 1003.2(b)(1). Regulation 1003.2(a) provides that the “decision to grant or deny a

                                                4
motion to ... reconsider is within the discretion of the Board.” 8 C.F.R. § 1003.2(a).

Accordingly, we review the BIA’s determination with respect to Fazil’s motion with

“broad deference” to its decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.

2003). In order to succeed on the petition for review, Fazil must show that the BIA’s

discretionary decision was somehow arbitrary, irrational, or contrary to law. See Tipu v.

INS, 20 F.3d 580, 582 (3d Cir. 1994). After careful review, we must conclude that the

BIA did not abuse its discretion in denying Fazil’s motion. See Lu v. Ashcroft, 259 F.3d

127, 131 (3d Cir. 2001).

       Fazil’s reconsideration motion – which, we note, was not filed by current counsel

– falls far short of specifying errors of law or fact in the BIA’s previous order and is so

lacking in pertinent authority that we would be hard pressed to conclude that the BIA

acted arbitrarily, irrationally or contrary to law by denying it. Respondent accurately

points out that Fazil’s most relevant argument presented to the BIA in his reconsideration

motion involves his contention that “[t]he Immigration Judge failed to take administrative

notice of the fact that said group is influential with the masses, operates nationwide, and

is notorious for implementing its death threats against persons who are in the opposite

fence.” See Admin. Rec. at 11, ¶ 18. The IJ’s Oral Decision, however, indicates that she

did, in fact, consider Fazil’s submissions, which included information about the Lashkar-

e-Tayyaba organization, including specific news articles Fazil submitted noting that the

“fundamentalist organization utilizes terrorism in order to effect its platform.” See id. at

54. With such a limited challenge, we can find no abuse of discretion on the part of the

                                              5
BIA in concluding that Fazil failed to identify any error in the IJ’s ultimate finding that

petitioner had not met his burden of demonstrating that any harm he allegedly

experienced was on account of a protected ground, and thus in denying his

reconsideration motion.

       Accordingly, for the foregoing reasons, we will deny the petition for review.




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