         09-3326-ag
         Ahmad v. Holder


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 30 th day of April, two thousand and ten.
 5
 6       PRESENT: ROBERT D. SACK,
 7                ROBERT A. KATZMANN
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       SALAWDEEN AHMAD, a.k.a. NASIR AHMAD
14       AKRAME, a.k.a. NASIR AHMAD AKRAMI,
15
16                                       Petitioner,
17
18                       -v.-                                                   09-3326-ag
19
20       ERIC H. HOLDER, JR., United States
21       Attorney General,
22
23                                       Respondent.
24
25
26




                                                            1
 1   FOR PETITIONER:      H. RAYMOND FASANO, Madeo & Fasano, New
 2                        York, NY.
 3
 4   FOR RESPONDENT:      TONY WEST, Assistant Attorney General,
 5                        Civil Division; MARY JANE CANDAUX,
 6                        Assistant Director; LAURA M.L. MAROLDY,
 7                        United States Department of Justice,
 8                        Civil Division, Office of Immigration
 9                        Litigation, Washington, D.C.
10
11
12       UPON DUE CONSIDERATION, of this petition for review of

13   a Board of Immigration Appeals (“BIA”) decision, IT IS

14   HEREBY ORDERED, ADJUDGED AND DECREED that the petition for

15   review is GRANTED.

16       Salawdeen Ahmad (“Petitioner”), a native and citizen of

17   Afghanistan, seeks review of a July 22, 2009, order of the

18   BIA denying his motion to reopen.    In re Salawdeen Ahmad,

19   No. A 029 104 866 (BIA July 22, 2009).    We assume the

20   parties’ familiarity with the underlying facts and

21   procedural history of the case.

22       We review the BIA’s denial of a motion to reopen for

23   abuse of discretion.    Ali v. Gonzales, 448 F.3d 515, 517 (2d

24   Cir. 2006).   An alien may only file one motion to reopen and

25   must do so within 90 days of the agency’s final

26   administrative decision.    8 C.F.R. § 1003.2(c)(2).   However,

27   the time and number limitations do not apply to a motion to



                                     2
1    reopen that is “based on changed circumstances arising in

2    the country of nationality or in the country to which

3    deportation has been ordered, if such evidence is material

4    and was not available and could not have been discovered or

5    presented at the previous hearing.”   8 C.F.R.

6    § 1003.2(c)(3)(ii).

7        The crux of Petitioner’s claim is that the

8    circumstances in Afghanistan with respect to “Westerners and

9    Pashtuns” have deteriorated, and that if he returns to

10   Afghanistan he will face “harassment, intimidation, violence

11   and persecution” because he is an ethnic Pashtun.   He also

12   claims that his extended stay in the United States has

13   created the risk that he will be perceived as a “Westerner”

14   and persecuted on that basis.

15       We find that the Board did not abuse its discretion in

16   denying Petitioner’s motion to reopen on the grounds that he

17   faces persecution as an ethnic Pashtun.   The Board observed

18   that the 2008 Country Report relied upon by the Petitioner

19   to support his motion belied his claim that ethnic Pashtuns

20   are subject to persecution in Afghanistan.   In particular,

21   it found that Pashtuns are able to pass freely at border

22   crossings while Hazaras – another ethnic group – must



                                     3
1    occasionally pay bribes.     The Board also pointed to evidence

2    that President Karzai (himself a Pashtun) has been accused

3    of providing preferential treatment to Pashtuns.     In

4    addition, the BIA found no merit to Petitioner’s claim that

5    he will face persecution from the Taliban; Petitioner

6    himself states that his family members were supporters of

7    the Mujahideen, the predecessor group to the Taliban.

8        However, we agree with Petitioner that the BIA abused

9    its discretion in neglecting to sufficiently analyze his

10   assertion that he will be persecuted as a perceived

11   Westerner.     Whether “Westerners” – or “perceived Westerners”

12   – constitutes a “particular social group” within the meaning

13   of the Immigration and Nationality Act (“INA”) is a question

14   of statutory interpretation that lies, in the first

15   instance, with the BIA.     See 8 U.S.C. § 1101(a)(42)(A).   To

16   that end, it has adopted a test to evaluate whether a group

17   of individuals is a “particular social group” entitled to

18   protectable status for the purposes of asylum and

19   withholding.     In re Acosta, 19 I. & N. Dec. 211, 232-34 (BIA

20   1985); see also In re C-A-, 23 I. & N. Dec. 951 (BIA 2006)

21   (reaffirming and clarifying the Acosta test).

22       Instead of engaging in that analysis, the BIA summarily


                                     4
1    dismissed Petitioner’s claim and stated simply that “[t]he

2    applicant does not ... refer to any authority which finds

3    ‘Westerners’ to be a particular social group.”        Pet. App. at

4    3 (denial of motion to reopen).     That was error.     The BIA

5    failed to engage in even a minimal level of analysis,

6    thereby depriving this Court of the ability to subject its

7    decision to meaningful review. 1   See Beskovic v. Gonzales,

8    467 F.3d 223, 227 (2d Cir. 2006).     “A court of appeals is

9    not generally empowered to conduct a de novo inquiry into

10   the matter being reviewed and to reach its own conclusions

11   based on such an inquiry.   Rather, the proper course, except

12   in rare circumstances, is to remand to the agency for

13   additional investigation or explanation.”     Gonzales v.

14   Thomas, 547 U.S. 183, 186 (2006) (per curiam) (internal

15   quotation marks and citations omitted).



         1
           We also note that, to the extent the Board’s
     conclusory assertion can be read as requiring Petitioner to
     identify specific precedent identifying “Westerners” as a
     particular social group in Afghanistan, it is an erroneous
     characterization of its role in adjudicating these matters.
     Whether a group of individuals falls within the parameters
     of the statute is necessarily a contextual and fact-specific
     inquiry, and case law will not always be helpful, much less
     required. “This is especially true because the BIA rarely
     states whether or not a particular group is [protected]
     under the INA ...” Ucelo-Gomez v. Gonzales, 464 F.3d 163,
     171 (2d Cir. 2006).

                                    5
1        For the foregoing reasons, the petition for review is

2    GRANTED and the case REMANDED for further proceedings

3    consistent with this order.    As we have completed our

4    review, any stay of removal that the Court previously

5    granted in this petition is VACATED, and any pending motion

6    for a stay of removal in this petition is DISMISSED as moot.

7    Any pending request for oral argument in this petition is

8    DENIED in accordance with Federal Rule of Appellate

 9   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
10
11
12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15




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