         13-1221 (L)
         Sarker v. Lynch
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A073 569 231
                                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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 3rd day of December, two thousand fifteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                PETER W. HALL,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       MIZANUR RAHMAN SARKER, AKA
14       MOHAMMED MIZANUR RAHMAN,
15                Petitioner,
16
17                         v.                                   13-1221 (L),
18                                                              13-3290 (Con)
19                                                              NAC
20
21       LORETTA E. LYNCH, UNITED STATES
22       ATTORNEY GENERAL,
23                Respondent.
24       _____________________________________
25
26       FOR PETITIONER:                 Paul O’Dwyer, New York, NY.
27
28       FOR RESPONDENT:                 Stuart F. Delery, Assistant Attorney
29                                       General; Nancy E. Friedman, Senior
 1                             Litigation Counsel; Allen W.
 2                             Hausman, Senior Litigation Counsel,
 3                             Office of Immigration Litigation,
 4                             United States Department of Justice,
 5                             Washington, D.C.
 6
 7       UPON DUE CONSIDERATION of these petitions for review of

 8   Board of Immigration Appeals (“BIA”) decisions, it is hereby

 9   ORDERED, ADJUDGED, AND DECREED that the lead petition for

10   review is DISMISSED, the consolidated petition is DENIED,

11   and the pending motions are DISMISSED as moot.

12       Mizanur Rahman Sarker, a native and citizen of

13   Bangladesh, seeks review of a March 5, 2013 decision of the

14   BIA affirming an Immigration Judge’s (“IJ”) August 3, 2011

15   decision denying his application for adjustment of status.

16   In re Mizanur Rahman Sarker, No. A073 569 231 (B.I.A. Mar.

17   5, 2013), aff’g No. A073 569 231 (Immig. Ct. N.Y. City Aug.

18   3, 2011).     Sarker also seeks review of an August 6, 2013 BIA

19   decision denying his motion to reopen.     In re Mizanur Rahman

20   Sarker, No. A073 569 231 (B.I.A. Aug. 6, 2013).     We assume

21   the parties’ familiarity with the underlying facts and

22   procedural history in this case.

23   13-1221 (L)

24       Sarker does not challenge the agency’s denial of his

25   application for adjustment of status in either his brief to


                                     2
 1   this Court or his motion papers.     Accordingly, he has waived

 2   any challenge to the denial of that application.

 3   Consequently, petition 13-1221 is DISMISSED and the

 4   Government’s motion to sever the petitions and dismiss the

 5   case is DENIED as moot.

 6   13-3290 (Con)

 7       Sarker challenges the BIA’s denial of his motion to

 8   reopen.   We review the BIA’s denial of a motion to reopen

 9   for abuse of discretion, remaining mindful of the Supreme

10   Court’s admonition that such motions are “disfavored.”     Ali

11   v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

12   Doherty, 502 U.S. 314, 322-23 (1992)); Kaur v. BIA, 413 F.3d

13   232, 233 (2d Cir. 2005).     An alien seeking to reopen

14   proceedings may file one motion to reopen no later than 90

15   days after the date on which the final administrative

16   decision was rendered.     8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8

17   C.F.R. § 1003.2(c)(2).     The motion must state the new facts

18   to be considered at the reopened hearing, and must be

19   supported by material, previously unavailable evidence.      8

20   U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1).     The “BIA

21   may deny a motion to reopen” if “the movant has not

22   established a prima facie case for the underlying


                                     3
 1   substantive relief sought.”    INS v. Abudu, 485 U.S. 94, 104

 2   (1988).   In order to establish prima facie eligibility for

 3   asylum, a movant must demonstrate “a realistic chance that

 4   he will be able to establish eligibility” during reopened

 5   proceedings.   Poradisova v. Gonzales, 420 F.3d 70, 78 (2d

 6   Cir. 2005) (internal quotation marks omitted).

 7       Regardless of whether Sarker’s motion should be

 8   considered timely filed, or the filing deadline equitably

 9   tolled, the BIA denied the motion on the alternate ground

10   that Sarker had not submitted material evidence to establish

11   his prima facie eligibility for relief.    The BIA did not

12   abuse its discretion in denying the motion on that ground.

13       Sarker claims that he fears persecution in Bangladesh

14   because he was involved in an adulterous relationship with a

15   woman who is now his wife.    However, the general country

16   conditions evidence he submitted in support of his motion

17   does not discuss how men are treated for perceived moral

18   transgressions.   There are articles discussing three

19   instances in which women were beaten or killed in Bangladesh

20   because they had affairs, but the evidence does not address

21   how society treats adulterers of either sex.     Further, the

22   articles state that in each instance, those who harmed the


                                    4
 1   women were arrested.   Sarker argues that any harm to his

 2   wife in Bangladesh because of the adulterous origin of their

 3   relationship would constitute persecution of him as well.

 4   However, “applicants can become candidates for asylum relief

 5   only based on persecution that they themselves have suffered

 6   or must suffer.”    Shi Liang Lin v. U.S. Dep’t of Justice,

 7   494 F.3d 296, 308 (2d Cir. 2007).     In any event, Sarker’s

 8   wife is a U.S. citizen, and accordingly is not at risk of

 9   being ordered removed from this country.

10       Sarker presented no evidence to show that anyone in

11   Bangladesh sought to harm him personally.     Hongsheng Leng v.

12   Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).     Sarker claimed

13   that his family, and his wife’s family, would seek to harm

14   them because of their relationship.     Because the agency

15   previously found Sarker not credible, however, and because

16   he did not swear or attest to the truthfulness of his

17   statement, the BIA did not err in giving the statement

18   limited weight.    Qin Wen Zheng v. Gonzales, 500 F.3d 143,

19   147 (2d Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of Justice,

20   471 F.3d 315, 342 (2d Cir. 2006).

21       Because the evidence Sarker submitted did not show his

22   prima facie eligibility for asylum, the BIA did abuse its


                                    5
 1   discretion in denying his motion on that basis.   And because

 2   the BIA’s conclusion did not rely upon whether Sarker’s

 3   motion was timely, his motion to remand to reconsider the

 4   timeliness of the motion is denied as moot.

 5       For the foregoing reasons, the lead petition for review

 6   is DISMISSED, and the consolidated petition is DENIED.     The

 7   Government’s pending motion for summary denial of petition

 8   13-1221, and Sarker’s pending motion for remand to consider

 9   the timeliness of his motion to reopen, are DISMISSED as

10   moot.

11       As we have completed our review, any stay of removal

12   that the Court previously granted in these petitions is

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

14   DISMISSED as moot.   Any pending request for oral argument in

15   these petitions is DENIED in accordance with Federal Rule of

16   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17   34.1(b).

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




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