     14-1867 (L)
     Hassan v. Barr
                                                                                      BIA
                                                                                   Hom, IJ
                                                                  A088 935 407/408/410/411


                           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 13th day of July, two thousand twenty.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            JOSÉ A. CABRANES,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   MINHAJ HASSAN, SAIKA HASSAN,
14   SADID HASSAN, SAMARA HASSAN,
15            Petitioners, 1
16
17                    v.                                  14-1867 (L),
18                                                        14-4733 (Con)
19                                                        NAC
20   WILLIAM P. BARR, UNITED STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24

     1Abrar Hassan has been removed as a petitioner because his removal proceedings
     were terminated after he adjusted to lawful permanent resident status. In re
     Abrar Hassan, No. A 088 935 409 (B.I.A. Nov. 26, 2014).
 1   FOR PETITIONER:                Brian H. Getson, Getson & Schatz,
 2                                  P.C., Philadelphia, PA.
 3
 4   FOR RESPONDENT:                Joseph H. Hunt, Assistant Attorney
 5                                  General; Kohsei Ugumori, Senior
 6                                  Litigation Counsel; Jesse Lloyd
 7                                  Busen, Trial Attorney, Office of
 8                                  Immigration Litigation, United
 9                                  States Department of Justice,
10                                  Washington, DC.

11       UPON DUE CONSIDERATION of these petitions for review of

12   two Board of Immigration Appeals (“BIA”) decisions, it is

13   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

14   review in the lead case, 14-1867, is DISMISSED in part and

15   GRANTED   in   part,     and   the   petition   for   review     in    the

16   consolidated case, 14-4733, is DENIED.

17       Petitioners Minhaj Hassan (“Hassan”) and Saika Hassan,

18   natives and citizens of Bangladesh, and Sadid Hassan and

19   Samara Hassan, seek review of two decisions: (1) a May 6,

20   2014, decision of the BIA affirming a May 25, 2012, decision

21   of an Immigration Judge (“IJ”) denying Hassan’s application

22   for asylum, withholding of removal, and relief under the

23   Convention     Against    Torture    (“CAT”)    and   ordering        their

24   removal, and (2) a November 26, 2014, decision of the BIA

25   denying their motion to reopen and reconsider.           In re Minhaj

26   Hassan, et al., Nos. A 088 935 407/408/409/410/411 (B.I.A.

                                          2
 1   May 6, 2014), aff’g Nos. A 088 935 407/408/409/410/411 (Immig.

 2   Ct. N.Y. City May 25, 2012); In re Minhaj Hassan, et al.,

 3   Nos. A 088 935 407/408/410/411 (B.I.A. Nov. 26, 2014).                              We

 4   assume the parties’ familiarity with the underlying facts and

 5   procedural history in this case.

 6     I.     Lead Case, 14-1867
 7
 8          We have reviewed the IJ’s                decision as modified and

 9   supplemented by the BIA.          Wala v. Mukasey, 511 F.3d 102, 105

10   (2d Cir. 2007).

11            A. Asylum

12          An alien is ineligible for asylum “unless the alien

13   demonstrates     by    clear    and       convincing         evidence      that   the

14   application has been filed within 1 year after the date of

15   the    alien’s   arrival   in        the      United    States.”           8    U.S.C.

16   § 1158(a)(2)(B).       Hassan’s asylum application was untimely

17   because he entered the United States in October 2008 but did

18   not file for asylum until January 2011.                      An application may

19   be considered outside the one-year deadline, however, “if the

20   alien    demonstrates      .     .    .       the     existence       of       changed

21   circumstances     which        materially           affect     the    applicant’s

22   eligibility      for    asylum       or       extraordinary          circumstances


                                               3
 1   relating    to    the       delay,”    id.       §     1158(a)(2)(D),       and    the

 2   application is filed “within a reasonable period given those

 3   circumstances,”         8     C.F.R.        §    1208.4(a)(4)(ii),           (a)(5).

 4   Extraordinary          circumstances             can      include       ineffective

 5   assistance of counsel.          8 C.F.R. § 1208.4(a)(5)(iii).

 6       Our     jurisdiction         to    review          the   agency’s       findings

 7   regarding the timeliness of an asylum application and the

 8   circumstances      excusing       the        untimeliness         is    limited    to

 9   “constitutional claims or questions of law.”                           See 8 U.S.C.

10   §§ 1158(a)(3), 1252(a)(2)(D).                   For jurisdiction to attach,

11   such claims must be colorable.                   Barco-Sandoval v. Gonzales,

12   516 F.3d 35, 40–41 (2d Cir. 2008).                     We review constitutional

13   claims and questions of law de novo.                      Pierre v. Holder, 588

14   F.3d 767, 772 (2d Cir. 2009).

15       Hassan argues that the agency erred as a matter of law

16   in pretermitting asylum as untimely because the applicable

17   regulations      and    policies       of       the    Department      of   Homeland

18   Security (“DHS”) prohibit an arriving alien from filing an

19   asylum     application        prior     to       a     positive     credible      fear

20   determination following a credible fear interview, and Hassan

21   did not receive a determination until May 2010, more than a


                                              4
 1   year     after    his    arrival   in   October   2008.     See     8   U.S.C.

 2   § 1225(b)(1)(A)(ii); 8 C.F.R. § 208.30(f).                  The applicable

 3   statutory and regulatory framework prevented him from filing

 4   a defensive application with the immigration court prior to

 5   a positive credible fear determination and his placement in

 6   removal proceedings, but there was no barrier to filing an

 7   affirmative asylum application by mailing an application to

 8   a service center.         8 C.F.R. § 1208.4(b).        Accordingly, there

 9   was no legal impediment to his filing.

10          As    to   Hassan’s    alternate     argument    that   ineffective

11   assistance of counsel excused his untimely filing, the agency

12   did not err in declining to accept that argument because

13   Hassan did not comply with the procedural requirements of

14   such a claim.       See Matter of Lozada, 19 I. & N. Dec. 637 (BIA

15   1988).       He complied with some of the procedural requirements

16   in   a      subsequent    motion   to   reconsider     at   issue       in   the

17   consolidated petition but, as discussed later, the BIA did

18   not abuse its discretion by denying that motion as untimely.

19               B. Withholding of Removal

20          We remand to the agency for further consideration of

21   Hassan’s claim for withholding of removal.                  Withholding of


                                             5
 1   removal is a mandatory form of relief that requires the

 2   applicant “to establish that his or her life or freedom would

 3   be threatened in the proposed country of removal on account

 4   of race, religion, nationality, membership in a particular

 5   social group, or political opinion.”        8 C.F.R. § 1208.16(b);

 6   see also Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d

 7   Cir.    2004).     Past   persecution      creates   a     rebuttable

 8   presumption of a future threat.        8 C.F.R. § 1208.16(b)(1).

 9   We review de novo whether the harm an applicant suffered

10   constitutes persecution.    Huo Qiang Chen v. Holder, 773 F.3d

11   396, 403 (2d Cir. 2014); see also Manzur v. U.S. Dep’t of

12   Homeland Sec., 494 F.3d 281, 288 (2d Cir. 2007).

13          Hassan alleged the following harm: (1) men associated

14   with his wife’s Muslim family kidnapped, beat, and threatened

15   to kill him unless he converted to Islam, which he did;

16   (2) contractors   he   worked   with    threatened   and    beat   him

17   because he came from a Hindu family, and the police did not

18   help him when he complained; and (3) Islamic terrorists came

19   to his home, cut his neck, and forcibly tried to circumcise

20   him because he came from a Hindu family and was married to a

21   Muslim.    The IJ denied withholding largely on credibility


                                     6
 1   grounds, finding that he was not credible and that he failed

 2   to submit credible evidence of his mistreatment as needed to

 3   meet his burden of proof.    The IJ also characterized the harm

 4   Hassan experienced as “discrimination and scorn,” slaps,

 5   pushes, and a “family problem” that did not rise to the level

 6   of persecution. App’x 24.

 7       The BIA assumed Hassan’s credibility, did not mention

 8   corroboration or burden, and concluded that “the mistreatment

 9   [Hassan]   described   [did]    not   rise     to   the   level    of

10   persecution.” App’x 12. The BIA did not provide any further

11   explanation for this conclusion or discuss whether it had

12   considered all the harm Hassan alleged as opposed to the IJ’s

13   characterization of the harm, given that the BIA assumed

14   Hassan’s credibility when the IJ did not.           Such a lack of

15   analysis warrants remand.      See Poradisova v. Gonzales, 420

16   F.3d 70, 77 (2d Cir. 2005) (“Despite our generally deferential

17   review of IJ and BIA opinions, we require a certain minimum

18   level of analysis from the IJ and BIA opinions denying asylum,

19   and indeed must require such if judicial review is to be

20   meaningful.”).

21       Further,     Hassan’s   allegations   of    harm,     which   are


                                     7
 1   considered credible because the BIA assumed credibility, were

 2   more     than   mere   slaps   and    pushes.          The   harm       included

 3   kidnapping, beatings, and threats that could rise to the level

 4   of persecution.        See Ivanishvili v. U.S. Dep’t of Justice,

 5   433 F.3d 332, 342 (2d Cir. 2006) (addressing distinction

 6   between harassment and persecution and remanding because

 7   “violent conduct generally goes beyond the mere annoyance and

 8   distress that characterize harassment”).

 9          Accordingly, because the harm Hassan suffered could rise

10   to the level of persecution and the BIA failed to provide a

11   reasoned analysis, we remand for further consideration of

12   withholding      of    removal.       Because      a     finding        of    past

13   persecution      would    result     in   a   presumption          of        future

14   persecution, we do not address Hassan’s claim of future

15   persecution.     See 8 C.F.R. § 1208.16(b)(1), (2).                Because we

16   remand    for   further    consideration      of       Hassan’s     claim      for

17   withholding of removal, we decline to reach the merits of

18   Hassan’s CAT claim at this time.          INS v. Bagamasbad, 429 U.S.

19   24, 25 (1976) (“As a general rule courts and agencies are not

20   required to make findings on issues the decision of which is

21   unnecessary to the results they reach.”).                    We note that


                                          8
 1   nothing precludes the agency from revisiting the CAT claim on

 2   remand or from considering the country conditions evidence

 3   that    Hassan   submitted   with    his   motion   to   reopen   in

 4   reevaluating withholding of removal.

 5     II. Consolidated Case, 14-4733, Motion to Reopen and
 6         Reconsider
 7
 8          We review the BIA’s denial of a motion to reconsider or

 9   reopen for abuse of discretion but review factual findings

10   regarding country conditions for substantial evidence.            See

11   Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008)

12   (motion to reopen and country conditions findings); Jin Ming

13   Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (motion to

14   reconsider).

15            A. Motion to Reconsider

16          The BIA did not err in construing Hassan’s motion as a

17   request for reconsideration to the extent that he reiterated

18   arguments from his prior appeal to the BIA about DHS’s delay

19   in issuing a credible fear determination and ineffective

20   assistance of counsel.       “A motion for reconsideration is a

21   request that the Board reexamine its decision in light of

22   additional legal arguments, a change of law, or perhaps an

23   argument or aspect of the case which was overlooked.”             Jin

                                      9
 1   Ming Liu, 439 F.3d at 111 (internal quotation marks and

 2   citation omitted); see also 8 U.S.C. § 1229a(c)(6)(C) (“The

 3   motion shall specify the errors of law or fact in the previous

 4   order and shall be supported by pertinent authority.”); 8

 5   C.F.R.   §   1003.2(b)(1)   (same).   Accordingly,   because   the

 6   motion was filed more than 30 days after the prior decision,

 7   the BIA did not abuse its discretion in denying the motion as

 8   untimely as to these claims.     See 8 U.S.C. § 1229a(c)(6)(B);

 9   8 C.F.R. § 1003.2(b)(2).

10            B. Motion to Reopen

11       Hassan’s motion was timely to the extent that it sought

12   reopening because he filed it within 90 days of the May 2014

13   BIA decision.      See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

14   § 1003.2(c)(2).     The BIA, however, did not err in denying

15   Hassan’s motion to reopen; although the evidence was new in

16   that it postdated his hearing before the IJ, it was not

17   material because it reinforced country conditions evidence

18   already in the record.

19       “[A] motion to reopen shall state the new facts that will

20   be proven at a hearing to be held if the motion is granted,

21   and shall be supported by affidavits or other evidentiary


                                     10
 1   material.”              8 U.S.C.     § 1229a(c)(7)(B);        8 C.F.R.

 2   § 1003.2(c)(1).        “A motion to reopen proceedings shall not

 3   be granted unless . . . that evidence sought to be offered is

 4   material and was not available and could not have been

 5   discovered or presented at the former hearing.”               8 C.F.R.

 6   § 1003.2(c)(1); see also INS v. Abudu, 485 U.S. 94, 104 (1988)

 7   (finding that BIA may deny a motion to reopen if “the movant

 8   has    not     introduced     previously   unavailable,       material

9    evidence”).

10         The    evidence   did   not   demonstrate   new    or   different

11   conditions for Hindus in Bangladesh, but rather, as the BIA

12   found, it reflected that violence against Hindus, especially

13   during election seasons, has been a longstanding problem in

14   Bangladesh.      Hassan’s original country conditions evidence

15   established     that    religious   tensions   between    Hindus   and

16   Muslims have been an ongoing concern in Bangladesh for many

17   years, and that Hindus were targeted during elections before

18   Hassan’s 2012 hearing.        See, e.g., Certified Administrative

19   Record at 559, 569–70 (2009 U.S. State Dep’t Human Rights

20   Rep. noting that “[v]iolence against religious and ethnic

21   minorities still occurred” and detailing discrimination and


                                         11
 1   attacks on Hindus, their homes, and their places of worship);

 2   592 (2010 article noting violence against Hindus during the

 3   1992 and October 2001 elections); 625–29 (undated report

 4   printed     in    2011   stating     that    “[e]thnic     cleansing    of

 5   minorities” has occurred since 1947 and describing violence

 6   against minorities during the October 2001 election, assaults

 7   and murders of Hindus, and the burning of Hindu-owned homes

 8   in 2002).

 9       The evidence that Hassan submitted with his motion to

10   reopen reflected similar conditions.               The evidence confirms

11   that religious tension and violence against Hindus existed

12   before Hassan’s hearing, and that societal and political

13   violence flares up around elections.               Much of the evidence

14   concerns violence against Hindus after a 2013 execution of an

15   Islamist leader and during the January 2014 election.                   Id.

16   at 110 (2013 U.S. Comm’n on Int’l Religious Freedom Rep.),

17   112 (2014 U.S. Comm’n on Int’l Religious Freedom Rep.), 145

18   (2013   U.S.     State   Dep’t     Human    Rights    Rep.).     But,   as

19   recognized in a 2014 article by an Amnesty International

20   researcher       about   the   January      2014     election   violence,

21   “[a]ttacks on Hindus and Bangladesh are nothing new” and


                                          12
 1   tensions between Hindus and Muslims date back to at least

 2   1947.    Id. at 158–59 (explaining that Hindus are targeted

 3   around    election      seasons    and    describing    serious     violence

 4   against Hindus during a 2001 election).                 And while a 2014

 5   Human    Rights   Watch    Report    states     that   the    January      2014

 6   elections “were the most violent in the country’s history,”

 7   this violence mostly impacted political actors, and there was

 8   little evidence that Hindus were targeted more than any other

 9   group.    Id. at 186–91, 198, 252.

10       Thus,    on    this    record,       the   BIA   did    not    abuse    its

11   discretion by declining to reopen.              See Abudu, 485 U.S. at

12   104 (requiring new and material evidence for reopening); Jian

13   Hui Shao, 546 F.3d at 168 (requiring movant to show that new

14   evidence “would likely alter the result in [his] case”).

15   Hassan’s remaining arguments that the BIA improperly took

16   administrative notice of the 2012 State Department Report and

17   failed to fully consider his country conditions evidence are

18   without merit.       The BIA was permitted to take notice of the

19   2012 report because those facts were not the sole basis for

20   denying the motion.         See Jian Hui Shao, 546 F.3d at 166–68

21   (finding    no    due    process     violation       when    the   BIA     took


                                          13
 1   administrative notice of a State Department Report because it

 2   did not rely exclusively on facts in that report to deny

 3   relief); cf. Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196,

 4   198 (2d Cir. 2007) (The BIA “exceeds its allowable discretion

 5   when . . . [it denies] a motion to reopen based solely on

 6   facts of which it took administrative notice”).                  And the

 7   BIA’s decision shows that it considered Hassan’s evidence

 8   even if it did not expressly cite to specific incidents or

9    statements.       See Jian Hui Shao, 546 F.3d at 169 (holding that

10   agency is not required to “expressly parse or refute on the

11   record     each    individual   argument    or    piece   of    evidence

12   offered”)    (internal quotation marks omitted).

13       For the foregoing reasons, the petition for review in

14   the lead case is DISMISSED in part as to asylum.                The lead

15   petition is otherwise GRANTED, the BIA’s decision is VACATED,

16   and case is REMANDED for further proceedings consistent with

17   this decision.        The consolidated petition is DENIED.            All

18   pending     motions    and   applications   are    DENIED      and   stays

19   VACATED.

20                                    FOR THE COURT:
21                                    Catherine O’Hagan Wolfe,
22                                    Clerk of Court


                                        14
