     17‐2460‐ag
     Tahir v. Barr

                                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 ASUMMARY 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 for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 15th day of October, two thousand nineteen.
 4
 5           PRESENT: GERARD E. LYNCH,
 6                            RAYMOND J. LOHIER, JR.,
 7                            RICHARD J. SULLIVAN,
 8                                    Circuit Judges.
 9           ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10           MUHAMMAD AHTESHAM
11           TAHIR,
12
13                           Petitioner,
14
15                     v.                                                         No. 17‐2460‐ag
16
17           WILLIAM P. BARR, UNITED STATES
18           ATTORNEY GENERAL,
19
20                            Respondent.
21           ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
 1         FOR PETITIONER:                             AMY NUSSBAUM GELL, Gell &
 2                                                     Gell, New York, NY.
 3
 4         FOR RESPONDENT:                             ALISON MARIE IGOE, Senior
 5                                                     Counsel for National Security,
 6                                                     Office of Immigration
 7                                                     Litigation (Lyle D. Jentzer,
 8                                                     Senior Counsel for National
 9                                                     Security, Office of Immigration
10                                                     Litigation, on the brief), for
11                                                     Chad A. Readler, Acting
12                                                     Assistant Attorney General,
13                                                     United States Department of
14                                                     Justice, Civil Division,
15                                                     Washington, DC.

16         UPON DUE CONSIDERATION of this petition for review of a Board of

17   Immigration Appeals (BIA) decision, it is hereby ORDERED, ADJUDGED, AND

18   DECREED that the petition for review is DENIED.

19         Muhammad Ahtesham Tahir, a native of Iran and citizen of Pakistan,

20   petitions for review of an August 3, 2017 decision of the BIA denying Tahir’s

21   motion to reopen his removal proceedings. See In re Muhammad Ahtesham

22   Tahir, No. A088 185 601 (B.I.A. Aug. 3, 2017). Although it is undisputed that

23   Tahir’s motion to reopen was untimely because it was filed more than three years

24   after his removal order became final, Tahir nevertheless moved to reopen on the


                                             2
 1   ground that conditions for members of the media have worsened in Pakistan

 2   since the Immigration Judge’s August 7, 2012 decision denying Tahir’s

 3   application for asylum, withholding of removal, and relief under the Convention

 4   Against Torture (CAT). We assume the parties’ familiarity with the underlying

 5   facts and the record of prior proceedings, to which we refer only as necessary to

 6   explain our decision to deny the petition.

 7         The applicable standards of review are well established. See Jian Hui

 8   Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008); In re S‐Y‐G‐, 24 I. & N. Dec.

 9   247, 253 (B.I.A. 2007). “We review a BIA decision to deny reopening

10   deferentially for abuse of discretion,” which exists where “the BIA’s decision‐

11   making was arbitrary or capricious . . . as evidenced by a decision that provides

12   no rational explanation for the agency’s conclusion, inexplicably departs from

13   established policies, is devoid of any reasoning, or contains only summary or

14   conclusory statements.” Jian Hui Shao, 546 F.3d at 168–69 (quotation marks

15   omitted). “[A]gency fact‐finders have a particular duty explicitly to consider

16   relevant evidence of country conditions when a petitioner bases a motion to

17   reopen on a purported change in those conditions. Where such consideration


                                              3
 1   has been given, we review the BIA’s fact‐finding only for substantial

 2   evidence.” Id. at 169 (quotation marks omitted).

 3         Here, the BIA explained that “the current country report, the news articles,

 4   and the media kit proffered do not sufficiently demonstrate changed

 5   circumstances or conditions in Pakistan (since the Immigration Judge’s August 7,

 6   2012 decision) that materially affect [Tahir’s] eligibility.” Certified Admin. R.

 7   at 3. Although some of the proffered country conditions evidence supports an

 8   inference that conditions have worsened for journalists in Pakistan in recent

 9   years, other evidence suggests that the threats and attacks against members of

10   the media existed well before 2012 and have “continu[ed]” in recent years.

11   Certified Admin. R. at 45, 48. Even assuming the proffered evidence establishes

12   that conditions in Pakistan have worsened to some degree since the Immigration

13   Judge’s 2012 decision, the BIA reasonably concluded that Tahir failed to

14   demonstrate a material change in country conditions excusing the untimely filing

15   of his motion. See 8 U.S.C. § 1229a(c)(7)(C)(i); see also In re S‐Y‐G‐, 24 I. & N. at

16   257 (“Change that is incremental or incidental does not meet the . . . requirements

17   for late motions of this type.”).


                                               4
 1         On this record and under our deferential standard of review, we conclude

 2   that the BIA did not err in denying Tahir’s motion to reopen.

 3         Because we find no error in the BIA’s determination that Tahir failed to

 4   establish changed country conditions, we need not address the BIA’s alternative

 5   basis for denying Tahir’s motion—his failure to establish prima facie eligibility

 6   for relief. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).

 7         We have considered Tahir’s remaining arguments, including that the BIA

 8   violated his due process rights in declining to reopen and remand for a hearing

 9   on a second asylum application, and conclude that they are without merit.

10         For the foregoing reasons, the petition for review is DENIED. All

11   pending motions are DENIED and stays VACATED.

12
13                                         FOR THE COURT:
14                                         Catherine O=Hagan Wolfe, Clerk of Court
15




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