         11-1238-ag
         Khatra v. Holder
                                                                                       BIA
                                                                               A076 093 486
                             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 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 1st day of June, two thousand twelve.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                BARRINGTON D. PARKER,
 9                REENA RAGGI,
10                    Circuit Judges.
11       _____________________________________
12
13       HARJIT SINGH KHATRA,
14                Petitioner,
15
16                          v.                                  11-1238-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               William P. Joyce, Boston, M.A.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Blair T. O’Connor,
27                                     Assistant Director; Juria L. Jones,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
32
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED, that the petition for review

 4   is DENIED.

 5       Petitioner Harjit Singh Khatra, a native and citizen of

 6   India, seeks review of a March 2, 2011 decision of the BIA

 7   denying his motion to reconsider the denial of his fourth

 8   motion to reopen his removal proceedings.        In re Harjit

 9   Singh Khatra, No. A076 093 486 (B.I.A. Mar. 2, 2011).           We

10   assume the parties’ familiarity with the underlying facts

11   and procedural history in this case.

12       As Khatra timely petitioned for review of only the

13   BIA’s denial of his motion for reconsideration of its

14   previous denial of his fourth motion to reopen, we are

15   precluded from considering the merits of the underlying

16   motion to reopen and removal proceedings.        See Jin Ming Liu

17   v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).        We have

18   reviewed the denial of Khatra’s motion to reconsider for

19   abuse of discretion.   See id.       A motion to reconsider must

20   “specify errors of law or fact in the [challenged BIA

21   decision] and [] be supported by pertinent authority.”           See

22   8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b)(1); Ke Zhen

23   Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.

24   2001).

                                      2
 1       Contrary to Khatra’s argument, the BIA did not abuse

 2   its discretion in denying reconsideration because it was

 3   permitted to consider the adverse credibility finding made

 4   by the immigration judge (“IJ”) in its rejection of Khatra’s

 5   claim in his fourth motion to reopen, that he had a well-

 6   founded fear of persecution.   See Paul v. Gonzales, 444 F.3d

 7   148, 154 (2d Cir. 2004) (holding that “an applicant may

 8   prevail on a theory of future persecution despite an IJ’s

 9   adverse credibility ruling as to past persecution, so long

10   as the factual predicate of the applicant’s claim of future

11   persecution is independent of the testimony that the IJ

12   found not to be credible” (emphasis in original)).   As the

13   BIA noted, Khatra had not shown that the factual predicate

14   of his claim of future persecution was independent of the

15   testimony that the IJ found incredible, as his fear of

16   future harm was based on the incidents of past persecution

17   or continuing retaliation for the same political activities

18   alleged in his original asylum application.   Because Khatra

19   failed to identify any error in the BIA’s consideration of

20   the adverse credibility determination, he did not satisfy

21   the requirements for reconsideration.   See 8 U.S.C. §

22   1229a(c)(6).


                                    3
 1       While Khatra argues that the BIA erred by failing to

 2   consider his evidence of changed country conditions, the

 3   record does not compellingly suggest that the BIA failed to

 4   consider any evidence, as the BIA explicitly referenced the

 5   background evidence he submitted in its denial of the fourth

 6   motion to reopen.   See Xiao Ji Chen v. U.S. Dep’t of

 7   Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming

 8   that the agency “has taken into account all of the evidence

 9   before [it], unless the record compellingly suggests

10   otherwise”).   Furthermore, in denying reconsideration, the

11   BIA referenced Khatra’s supporting evidence, noting that it

12   suggested that the then-current conditions in India were a

13   continuation of previously existing conditions.

14       Because the remainder of Khatra’s motion to reconsider

15   merely reasserted arguments rejected by the BIA in denying

16   his motion to reopen, the BIA did not abuse its discretion

17   in denying his motion to reconsider.   See Jin Ming Liu, 439

18   F.3d at 111 (noting that the BIA does not abuse its

19   discretion by denying a motion to reconsider when the motion

20   merely repeats arguments that the BIA has previously

21   rejected).

22



                                   4
1        For the foregoing reasons, the petition for review is

2    DENIED.   As we have completed our review, any stay of

3    removal that the Court previously granted in this petition

4    is VACATED, and any pending motion for a stay of removal in

5    this petition is DISMISSED as moot. Any pending request for

6    oral argument in this petition is DENIED in accordance with

7    Federal Rule of Appellate Procedure 34(a)(2), and Second

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




                                    5
