         12-4328
         Azad v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A099 220 963
                           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 13th day of August, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                ROSEMARY S. POOLER,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       NASHRAT SHAH AZAD,
14                Petitioner,
15
16                        v.                                    12-4328
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Glenn L. Formica, Wade Luckett,
24                                     Formica Williams, P.C., New Haven,
25                                     Connecticut.
26
27       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
28                                     General; Jennifer L. Lightbody,
29                                     Senior Litigation Counsel; Edward E.
1                             Wiggers, Trial Attorney, Office of
2                             Immigration Litigation, United
3                             States Department of Justice,
4                             Washington, D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

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

9    is DENIED.

10       Petitioner Nashrat Shah Azad, a native and citizen of

11   Bangladesh, seeks review of an October 5, 2012, decision of

12   the BIA affirming a January 10, 2011, decision of

13   Immigration Judge (“IJ”) Michael W. Straus, pretermitting

14   his application for asylum and denying his application for

15   withholding of removal and relief under the Convention

16   Against Torture (“CAT”).     In re Nashrat Shah Azad, No. A099

17   220 963 (B.I.A. Oct. 5, 2012), aff’g No. A099 220 963

18   (Immig. Ct. Hartford Jan. 10, 2011).    We assume the parties’

19   familiarity with the underlying facts and procedural history

20   in this case.

21       Under the circumstances of this case, we have

22   considered both the IJ’s and the BIA’s opinions “for the

23   sake of completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237

24   (2d Cir. 2008)(internal quotation marks omitted).     The

25   applicable standards of review are well-established.        See 8


                                     2
1    U.S.C. § 1252(b)(4)(B); Aliyev v. Mukasey, 549 F.3d 111, 115

2    (2d Cir. 2008).

3    I.   Pretermission of Asylum

4         Title 8, Section 1158(a)(3) of the United States Code

5    provides that no court shall have jurisdiction to review the

6    agency’s finding that an asylum application was untimely

7    under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

8    changed nor extraordinary circumstances excusing the

9    untimeliness under 8 U.S.C. § 1158(a)(2)(D).

10   Notwithstanding that provision, we retain jurisdiction to

11   review constitutional claims and “questions of law.”   8

12   U.S.C. § 1252(a)(2)(D).

13        Azad contends that the IJ “misstated the facts” in

14   finding that the 2010 attack on his sister’s newspaper did

15   not materially affect his eligibility for asylum.   To the

16   extent that this argument “disputes the correctness of the

17   IJ’s fact-finding” that he was not involved with his

18   sister’s newspaper, he does not raise a reviewable question

19   of law.   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

20   315, 329 (2d Cir. 2006).

21        Insofar as Azad argues that the IJ’s fact-finding was

22   flawed by an error of law, his claim lacks merit.   Given


                                    3
1    Azad’s vague testimony about his involvement with his

2    sister’s newspaper, the IJ’s finding that he had no specific

3    involvement neither “totally overlooked" nor “seriously

4    mischaracterized” the evidence.     Mendez v. Holder, 566 F.3d

5    316, 323 (2d Cir. 2009).

6    II. Withholding of Removal and CAT Relief

7        Notwithstanding Azad’s argument to the contrary, the

8    agency did not err in finding that the harm he suffered in

9    Bangladesh did not rise to the level of persecution.     See

10   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d

11   Cir. 2006).   In finding that Azad failed to establish past

12   persecution, the agency reasonably relied on the fact that

13   he was not physically harmed in Bangladesh and remained in

14   Bangladesh, without incident, for two years following the

15   attempted assault.    See id. at 341 (noting that, in order to

16   constitute persecution, the harm must be sufficiently severe

17   to rise above “mere harassment”).     Although criminal charges

18   were filed against him, the record shows that Azad was never

19   subjected to serious physical or mental harm and,

20   accordingly, his experiences in Bangladesh do not constitute

21   past persecution.    See Mei Fun Wong v. Holder, 663 F.3d 64,

22   72 (2d Cir. 2011).


                                    4
1        The agency also reasonably concluded that Azad failed

2    to establish a well-founded fear of future persecution.     See

3    Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005)

4    (holding that absent solid support in the record for the

5    petitioner’s assertion that he would be persecuted, his fear

6    was “speculative at best”).   In making this determination,

7    the agency reasonably found that, although Azad’s family

8    members in Bangladesh had been threatened, sued, and had

9    their newspaper ransacked, these experiences did not

10   constitute persecution.    See Ivanishvili, 433 F.3d at 342;

11   see also Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d

12   Cir. 1999) (determining that petitioner’s fear of future

13   persecution was diminished when similarly-situated relatives

14   continued to live in petitioner’s native country without

15   harm).    Moreover, Azad remained in Bangladesh for two years

16   following the attempted attack, without incident, further

17   undercutting the likelihood of future persecution.

18       Finally, because Azad’s CAT claim is based on the same

19   evidence as his withholding of removal claim, the claim

20   fails for the same reasons.    See Paul v. Gonzales, 444 F.3d

21   148, 156 (2d Cir. 2006).

22       For the foregoing reasons, the petition for review is

23   DENIED.   As we have completed our review, the pending motion
                                   5
1   for a stay of removal in this petition is DISMISSED as moot.

2

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




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