     05-6291-ag (L); 08-5158-ag (Con)
     Dada v. Holder
                                                                            BIA
                                                                         Hom, IJ
                                                                    A095 980 071
                                                                    A095 961 832
                                                                    A095 961 841
                            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 21 st day of January, two thousand ten.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8                 Chief Judge,
 9            ROGER J. MINER,
10            PIERRE N. LEVAL,
11                 Circuit Judges.
12   _______________________________________
13   FAZAL MAHMOOD DADA, MOHAMMAD IBRAHIM
14   DADA, AZEEM FAZAL DADA,
15            Petitioners,
16             v.                                       05-6291-ag (L);
17                                                      08-5158-ag (Con)
18                                                      NAC
19   ERIC H. HOLDER, JR., 1 UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _______________________________________


                  1
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric. H. Holder, Jr., is
         automatically substituted for former Attorney General
         Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONERS:        Shahla Khan, New York, New York.
 2
 3   FOR RESPONDENT:         Tony West, Assistant Attorney
 4                           General Civil Division; Michael P.
 5                           Lindemann, Assistant Director; Lyle
 6                           D. Jentzer, Attorney, Office of
 7                           Immigration Litigation, United
 8                           States Department of Justice,
 9                           Washington, D.C.
10
11       UPON DUE CONSIDERATION of these consolidated petitions

12   for review of two Board of Immigration Appeals (“BIA”)

13   decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that

14   the petitions for review are DENIED.

15       Fazal Mahmood Dada, a native and citizen of Pakistan,

16   seeks review of an October 27, 2005, order of the BIA

17   affirming the August 3, 2004, decision of Immigration Judge

18   (“IJ”) Sandy Hom, which denied his application for asylum,

19   withholding of removal, and relief under the Convention

20   Against Torture (“CAT”). 2   In re Fazal Mahmood Dada, et al.,

21   Nos. A095 980 071/A095 961 832/A095 961 841 (B.I.A. Oct. 27,

22   2005), aff’g Nos. A095 980 071/A095 961 832/A095 961 841

23   (Immig. Ct. N.Y. City Aug. 3, 2004).    Dada also seeks review


            Fazal Mahmood Dada was the lead petitioner before
            2

       the agency. Accordingly, we refer exclusively to him
       throughout. Dada’s oldest son, Muhammad Dada, filed an
       independent asylum application, which, because it relies
       entirely on the allegations in his father’s application,
       was consolidated with Dada’s case. Dada’s minor son,
       Azeem Dada, applied for asylum as a derivative
       beneficiary of his father.

                                    2
1    of the BIA’s September 24, 2008, order denying his motion to

2    reopen his removal proceedings.   See In re Fazal Mahmood

3    Dada, et al., Nos. A095 980 071/A095 961 832/A095 961 841

4    (B.I.A. Sept. 24, 2005).   We assume the parties’ familiarity

5    with the underlying facts and procedural history in this

6    case.

7    I.   Motion to Add Sons to Caption

8         Federal Rule of Appellate Procedure 15 requires that

9    the petition “must name” each party seeking review either in

10   the caption or body of the petition.      Dada put only his own

11   name on the petition for review, but added the phrase “et

12   all” by hand.   Terms such as “et al.” are ordinarily

13   insufficient.   See Fed. R. App. P. 15.     However, by using

14   the phrase “et all,” and also attaching the BIA’s decision,

15   which lists all three names and alien numbers, the petition

16   effectively complied with the rule because his actions were

17   “the functional equivalent of what the rule requires.”      See

18   Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988)

19   (addressing Fed. R. App. P. 3, and finding that, “if a

20   litigant files papers in a fashion that is technically at

21   variance with the letter of a procedural rule, a court may

22   nonetheless find that the litigant has complied with the


                                   3
1    rule if the litigant’s actions were the functional

2    equivalent of what the rule requires”); see also Kowaleski

3    v. United States Dep’t of Labor, 879 F.2d 1173 (3d Cir.

4    1989) (applying the Supreme Court’s reasoning in Torres to

5    petitions for review filed under Rule 15).

6    II.   Petition for Review of Agency’s Denial of Dada’s
7          Applications for Relief
8
9          We nonetheless deny Dada’s petition for review

10   challenging the BIA’s affirmance of the IJ’s denial of his

11   applications for asylum, withholding of removal, and CAT

12   relief.    We review both the IJ’s and the BIA’s decisions.

13   See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.

14   2005).    The applicable standards of review are well-

15   established.    See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen

16   Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007); Salimatou Bah

17   v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

18         We lack jurisdiction to consider Dada’s challenge to

19   the agency’s pretermission of his untimely asylum

20   application.    See 8 U.S.C. § 1158(a)(3) (explaining that no

21   court shall have jurisdiction to review any determination of

22   the Attorney General regarding the timeliness of an asylum

23   application under section 1158(a)(2)(B)).    Although we

24   retain jurisdiction to review constitutional claims and

                                    4
1    questions of law, 8 U.S.C. § 1252(a)(2)(D), Dada raises no

2    such argument, essentially disputing the IJ’s determination

3    that his delay in filing after the end of his lawful status

4    was not reasonable.

5        With respect to Dada’s applications for withholding of

6    removal and CAT relief, we conclude that the IJ’s adverse

7    credibility determination is supported by substantial

8    evidence.     In finding Dada not credible, the IJ reasonably

9    relied upon inconsistencies surrounding Dada’s alleged

10   arrest by Pakistani authorities.     See Diallo v. INS, 232

11   F.3d 279, 288 (2d Cir. 2000).     In light of those

12   discrepancies, the IJ reasonably determined that Dada’s

13   failure to provide corroborating evidence further undermined

14   his credibility.     See Biao Yang v. Gonzales, 496 F.3d 268,

15   273 (2d Cir. 2007). Because the agency’s adverse credibility

16   determination was supported by substantial evidence, the

17   agency reasonably found that Dada was unable to meet his

18   burden of proof for withholding of removal and CAT relief.

19   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue

20   Hong Yang v. U.S. Dep’t. of Justice, 426 F.3d 520, 523 (2d

21   Cir. 2005).

22

23       Furthermore, there was no abuse of discretion in the
                                  5
1    agency’s denial of Dada’s request for a continuance.      See

2    Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006).

3    Dada’s case had been pending for over a year; Dada had ample

4    time to prepare and obtain documents; his new counsel was on

5    notice that the case was scheduled for a full merits

6    hearing, an interpreter had already been arranged; and the

7    IJ had continued the matter several times in the past. See

8    Morgan v. Gonzales, 445 F.3d 549, 551-52 (2d Cir. 2006)

9    (giving the agency wide latitude in declining to continue

10   cases and finding that they abuse their discretion only when

11   a denial is based on a legal or factual error or is

12   otherwise outside the “range of permissible decisions”).

13   III. Petition for Review of BIA’s Denial of Motion to Reopen
14
15       We likewise deny Dada’s petition for review of the

16   BIA’s denial of his motion to reopen, finding no abuse of

17   discretion.   See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

18   2005) (per curiam); Jin Ming Liu v. Gonzales, 439 F.3d 109,

19   111 (2d Cir. 2006).   The BIA properly considered the

20   evidence Dada offered in support of his claim that country

21   conditions in Pakistan had changed, and reasonably found

22   that this evidence either failed to show a material change

23   in country conditions or was previously available.      See

24   8 U.S.C. § 1229a(c)(7)(C)(i)-(ii); INS v. Abudu, 485 U.S.


                                   6
1    94, 104-05 (1988).

2        Dada argues that the BIA violated his due process

3    rights by taking administrative notice of a change in

4    country conditions without giving Dada an opportunity to

5    respond.    However, there was no violation because that was

6    not the sole basis for the BIA’s rejection of his motion.

7    See Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196, 198-99

8    (2d Cir. 2007); Shao v. Mukasey, 546 F.3d 138, 167-68 (2d

9    Cir. 2008).    There was no abuse of discretion in the BIA’s

10   denial of Dada’s motion to reopen.

11       For the foregoing reasons, the petitions for review are

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34(b).

19                                FOR THE COURT:
20                                Catherine O’Hagan Wolfe, Clerk
21
22
23




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