     18-2379
     Tanveer v. Barr
                                                                             BIA
                                                                          Hom, IJ
                                                                     A073 039 250
                            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 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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 9th day of March, two thousand twenty.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            DEBRA ANN LIVINGSTON,
 9            STEVEN J. MENASHI,
10                 Circuit Judges.
11   _____________________________________
12
13   MOHAMMAD TANVEER,
14            Petitioner,
15
16                     v.                                  18-2379
17                                                         NAC
18   WILLIAM P. BARR,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   H. Raymond Fasano, Esq., New
24                                     York, NY.
25
26   FOR RESPONDENT:                   Joseph H. Hunt, Assistant Attorney
27                                     General; Mary Jane Candaux,
28                                     Assistant Director; Remi Da Rocha-
29                                     Afodu, Trial Attorney, Office of
 1                               Immigration Litigation, United
 2                               States Department of Justice,
 3                               Washington, DC.

 4       UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   is DENIED.

 8       Petitioner Mohammad Tanveer, a native and citizen of

 9   Pakistan, seeks review of an August 7, 2018, decision of the

10   BIA affirming a February 13, 2018, decision of an Immigration

11   Judge (“IJ”) denying Tanveer’s motion to reopen.         In re

12   Mohammad Tanveer, No. A 073 039 250 (B.I.A. Aug. 7, 2018),

13   aff’g No. A 073 039 250   (Immig. Ct. N.Y. City Feb. 13, 2018).

14   We assume the parties’ familiarity with the underlying facts

15   and procedural history.

16       Under the circumstances of this case, we have reviewed

17   the IJ’s decision as supplemented by the BIA.     See Yan Chen

18   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   As an initial

19   matter, Tanveer does not challenge the agency’s denial of sua

20   sponte reopening and has therefore waived review of that

21   issue.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1,

22   545 n.7 (2d Cir. 2005) (petitioner abandons issues and claims

23   not raised in his brief).      And regardless of waiver, this

24   Court generally lacks jurisdiction to review the agency’s
                                    2
1    “entirely discretionary” decision declining to reopen sua

2    sponte.     Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006);

3    see also Sumbundu v. Holder, 602 F.3d 47, 55 (2d Cir. 2010)

4    (“[T]he decision of the BIA whether to invoke its sua sponte

5    authority is committed to its unfettered discretion [and is]

6    not subject to judicial review.”) (internal quotation marks

7    omitted).

8        As to Tanveer’s motion to reopen, we review the agency’s

9    denial of the motion for abuse of discretion but review any

10   finding regarding changed country conditions for substantial

11   evidence.    Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d

12   Cir. 2008).     “An abuse of discretion may be found in those

13   circumstances where the [BIA’s] decision provides no rational

14   explanation, inexplicably departs from established policies,

15   is devoid of any reasoning, or contains only summary or

16   conclusory statements; that is to say, where the [BIA] has

17   acted in an arbitrary or capricious manner.”       Ke Zhen Zhao

18   v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001)

19   (internal citations omitted).

20       An alien seeking to reopen proceedings may file only one

21   motion to reopen no later than 90 days after the date on which

22   the final administrative decision was rendered.         8 U.S.C.

23   § 1229a(c)(7)(A),      (C)(i);       8 C.F.R.   §§ 1003.2(c)(2),
                                      3
1    1003.23(b)(1).          Tanveer’s November 2017 motion to reopen was

2    untimely because he filed it 19 years after the IJ ordered

3    him removed in March 1998.           However, the time limitation for

4    filing a motion to reopen does not apply if reopening is

5    sought   to       apply    for    asylum   “based    on    changed    country

6    conditions arising in the country of nationality or the

7    country to which removal has been ordered, if such evidence

8    is material and was not available and would not have been

9    discovered        or     presented    at    the    previous       proceeding.”

10   8 U.S.C.      § 1229a(c)(7)(C)(ii);          see    also      8    C.F.R.    §§

11   1003.2(c)(3)(ii),           1003.23(b)(4)(i).         An    alien     seeking

12   reopening must also establish prima facie eligibility for the

13   relief sought.           Poradisova v. Gonzales, 420 F.3d 70, 78 (2d

14   Cir. 2005).            The agency did not abuse its discretion in

15   denying reopening.

16       The agency reasonably determined that Tanveer failed to

17   establish     a    change    in   country    conditions     to     excuse   his

18   untimely motion.          Tanveer argues primarily on appeal that he

19   has been and will be perceived to be an Ahmadiyya Muslim, and

20   that he demonstrated worsening conditions for Ahmadis in

21   Pakistan.      “In determining whether evidence accompanying a

22   motion to reopen demonstrates a material change in country

23   conditions        that    would    justify    reopening,      [the    agency]
                                            4
1    compare[s] the evidence of country conditions submitted with

2    the motion to those that existed at the time of the merits

3    hearing below.”        In re S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA

4    2007).

5        To support his claim, Tanveer submitted the 2016 U.S.

6    State Department’s Human Rights Reports for Pakistan and the

7    2017 Human Rights Watch Report for Pakistan.                 But beyond his

8    own statements that he experienced harm in Pakistan as a

9    perceived Ahmadi, he did not submit as a comparison any

10   substantive evidence of conditions before 1998, when the IJ

11   ordered him removed in absentia.             See In re S-Y-G-, 24 I. &

12   N. Dec. at 253.        And while the two reports he submitted detail

13   harsh    conditions      for    Ahmadis,    they       do   not    demonstrate

14   materially changed conditions for them.                We acknowledge that

15   the State Department Report noted that Ahmadi representatives

16   described    a     government        raid   on    an    Ahmadi     center     as

17   “unprecedented”        and     therefore    “indicative       of    worsening

18   conditions       for    the    community     in    Pakistan,”       but     that

19   characterization by Ahmadis, without more, is insufficient to

20   demonstrate that the persecution of Ahmadis has worsened

21   since before Tanveer’s 1998 hearing at which he failed to

22   appear.     The reports otherwise indicate that persecution of

23   religious    minorities        has   been   an    ongoing     issue    for   an
                                            5
1    indefinite         period     of    time,     stating     that       religious

2    discrimination        “continued,”     there    were    “improvements”     in

3    police protection and treatment of religious minorities, and

4    the government’s encouragement of Ahmadi discrimination was

5    a continuation of previous behavior.                  Therefore, based on

6    this record, the agency did not abuse its discretion in

7    determining        that   Tanveer   failed     to   establish    a   material

8    change in conditions for Ahmadis to warrant reopening.                    See

9    8 U.S.C. § 1229a(c)(7)(C).

10          To the extent that Tanveer argues that the BIA overlooked

11   his evidence, he is incorrect; the BIA explicitly noted and

12   considered the two reports he submitted.                See Jian Hui Shao,

13   546 F.3d at 169 (agency is required to “consider relevant

14   evidence of country conditions[,]” but need not “expressly

15   parse or refute on the record each individual argument or

16   piece of evidence” (internal quotation marks omitted)).

17          Tanveer argues that the IJ never made an explicit finding

18   that    he   did    not     demonstrate     changed    country   conditions

19   because the IJ wrote “changed circumstances,” rather than

20   “changed conditions.”          The motion to reopen statute uses the

21   phrase “changed country conditions arising in the country of

22   nationality or the country to which removal has been ordered

23   . . . .,” 8 U.S.C. § 1229a(c)(7)(C)(ii), but the implementing
                                   6
1    regulations for the BIA use the phrase “changed circumstances

2    arising in the country of nationality or in the country to

3    which    deportation      has    been    ordered . . . .”      8   C.F.R.    §

4    1003.2(c)(3)(ii)       (emphasis        added).     Moreover,      there    is

5    nothing in the IJ’s decision indicating that he denied the

6    motion for a failure to show changed personal circumstances,

7    nor did Tanveer argue changed personal circumstances to the

8    IJ or BIA.    And in his notice of appeal, Tanveer himself used

9    the term “change in circumstances” in an apparent attempt to

10   refer to changed country conditions.                Regardless, we have

11   held that changes in personal circumstances do not excuse the

12   applicable time limitation.             See Li Yong Zheng v. U.S. Dep’t

13   of Justice, 416 F.3d 129, 130–31 (2d Cir. 2005); see also Wei

14   Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006) (“The law

15   is   clear   that    a    petitioner      must    show   changed    country

16   conditions in order to exceed the 90-day filing requirement

17   for seeking to reopen removal proceedings.                A self-induced

18   change in personal circumstances cannot suffice.” (internal

19   citation omitted)).

20        Finally, Tanveer argues that events after the BIA’s

21   decision—an August 2018 political regime change, in which his

22   former   political       party   lost     control   of   the   government—

23   demonstrate     changed         country     conditions     that     warrant
                                           7
1    reopening.   But Tanveer submits no evidence to support this

2    claim, and even if there has been a change, the materiality

3    and frequency of the shift in political control is unclear

4    given regime changes in the past.

5        For the foregoing reasons, the petition for review is

6    DENIED.   All pending motions and applications are DENIED and

7    stays VACATED.

 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe,
10                               Clerk of Court




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