         09-2101-ag
         Ullah v. Holder


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 2 nd day of July, two thousand and ten.
 5
 6       PRESENT: ROGER J. MINER,
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12       MOHAMMED JAFAR ULLAH, MAMTAJ BEGUM,
13       JAHED MOHAMMED JAFARULLAH, FAHAD
14       MOHAMMED JAFARULLAH, and SHAHEEN AHKTER,
15
16                                       Petitioners,
17
18                       -v.-                                                   09-2101-ag
19
20       ERIC HOLDER, JR., United States Attorney
21       General, and DEPARTMENT OF HOMELAND
22       SECURITY,
23
24                                       Respondents. *
25
26




                 *
                  The Clerk of the Court is respectfully directed to amend the
         official caption of this action to conform to the caption listed above.
 1   FOR PETITIONERS:        AMY N. GELL, Gell & Gell, New York,
 2                           NY.
 3
 4   FOR RESPONDENTS:        ANDREW B. INSEGNA, Trial Attorney,
 5                           Office of Immigration Litigation
 6                           (Tony West, Assistant Attorney
 7                           General; Daniel E. Goldman, Senior
 8                           Litigation Counsel, Office of
 9                           Immigration Litigation, on the
10                           brief), Civil Division, U.S.
11                           Department of Justice, Washington,
12                           DC.
13
14       UPON DUE CONSIDERATION of this petition for review of a

15   Board of Immigration Appeals (“BIA”) decision, IT IS HEREBY

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

17   is DENIED.

18       Petitioners Mohammed Jafar Ullah, Mamtaj Begum, Jahed

19   Mohammed Jafarullah, Fahad Mohammed Jafarullah, and Shaheen

20   Akhter, 1 natives and citizens of Bangladesh, seek review of

21   the orders of the BIA denying their motion to reopen their

22   removal proceedings.   We assume the parties’ familiarity

23   with the underlying facts and the procedural history of the

24   case.

25       We review the BIA’s denial of a motion to reopen for

26   abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517



         1
           Petitioners Mohammed Jafar Ullah and Mamtaj Begum are
     husband and wife, respectively, and the remaining
     petitioners are their children.

                                   2
1    (2d Cir. 2006).     An alien who has been ordered removed may

2    typically file one motion to reopen, but he or she must do

3    so within 90 days of the final administrative decision.       8

4    U.S.C. § 1229a(c)(7)(A), 1229a(c)(7)(C)(i).     There is no

5    dispute that, with respect to each petitioner, the motion to

6    reopen that is the subject of this petition was untimely and

7    number-barred.     See id.; 8 C.F.R. § 1003.2(c)(2).   However,

8    seeking to avoid these procedural restrictions, petitioners

9    argued to the BIA that “changed country conditions” in

10   Bangladesh excused them from the time limits on motions to

11   reopen.   8 U.S.C. § 1229a(c)(7)(C)(ii).

12       In a May 14, 2009 order, the BIA denied the motion as

13   to petitioners Mamtaj Begum, Jahed Mohammed Jafarullah,

14   Fahad Mohammed Jafarullah, and Shaheen Akhter.     The agency

15   reasoned that these petitioners had “not adequately

16   demonstrated changed country circumstances in Bangladesh

17   since their last motion in 2008 or even since their removal

18   hearing in 1999 to support their claim that their fears are

19   well-founded or that there is a clear probability of

20   persecution or torture if they are forced to return to

21   Bangladesh.”     Having reviewed the documentation that

22   petitioners submitted in support of their motion, we



                                     3
1    conclude that substantial evidence supports the BIA’s

2    conclusion that these four petitioners failed to establish

3    changed country conditions in support of their motion to

4    reopen.   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

5    Cir. 2008).   Moreover, a reasonable fact-finder would not be

6    compelled to conclude that the BIA ignored any material

7    evidence that petitioners submitted.     See Wei Guang Wang v.

8    BIA, 437 F.3d 270, 275 (2d Cir. 2006).     Accordingly, with

9    respect to petitioners Mamtaj Begum, Jahed Mohammed

10   Jafarullah, Fahad Mohammed Jafarullah, and Shaheen Akhter,

11   the petition for review is denied.

12       In a separate May 14, 2009 order, the BIA denied the

13   motion to reopen by Mohammed Jafar Ullah based on the

14   agency’s “departure bar” regulation, 8 C.F.R. § 1003.2(d),

15   reasoning that it lacked jurisdiction to consider the motion

16   because Ullah had been removed from the United States.     On

17   appeal, Ullah relies on William v. Gonzales, 499 F.3d 329

18   (4th Cir. 2007), to argue that the departure bar regulation

19   “conflicts” with the current provisions of the Immigration

20   and Nationality Act (“INA”) relating to motions to reopen

21   removal proceedings, 8 U.S.C. § 1229a(c)(7). 1    We decline

         1
           In In re Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA
     2008), the BIA rejected the interpretation of the INA

                                   4
1    to address this argument.   We do so because, even if we were

2    to resolve the issue in Ullah’s favor, a remand to the BIA

3    would be futile.   “[O]ur decision to uphold the agency

4    decision or to remand for further proceedings depends on how

5    ‘confidently’ we can ‘predict that the agency would reach

6    the same decision absent the errors that were made.’”

7    Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008)

8    (quoting Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339

9    (2d Cir. 2006)).   Ullah’s motion, which was otherwise time-

10   and number-barred, was based on the same legal argument —

11   i.e., “changed country conditions” in Bangladesh, 8 U.S.C. §

12   1229a(c)(7)(C)(ii) — and similar supporting documentation as

13   the motion filed by the other members of his family.

14   Because we have already concluded that the BIA’s denial of



     offered by the Fourth Circuit in William. Id. at 653-60.
     At least two of our sister circuits have reached a similar
     conclusion as that reached by the BIA. See Rosillo-Puga v.
     Holder, 580 F.3d 1147, 1153-58 (10th Cir. 2009) (expressly
     rejecting the analysis of the William majority); Pena-Muriel
     v. Gonzales, 489 F.3d 438, 441-43 (1st Cir. 2007) (rejecting
     the argument that the departure bar regulation was impliedly
     repealed by the Illegal Immigration Reform and Immigrant
     Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009
     (1996)); see also Mendiola v. Holder, 585 F.3d 1303, 1310
     (10th Cir. 2009) (following Rosillo-Puga). But see Coyt v.
     Holder, 593 F.3d 902, 907 (9th Cir. 2010) (holding that the
     departure bar “cannot apply to cause the withdrawal of an
     administrative petition filed by a petitioner who has been
     involuntarily removed”).

                                   5
1    the motion to reopen as to the other four petitioners was

2    not an abuse of its discretion, we are “confident[]” that

3    the agency would reach the same conclusion as to Ullah if we

4    were to remand and that it would be within its discretion to

5    do so.   Accordingly, Ullah’s petition is denied.

6        We have reviewed all of petitioners’ arguments and find

7    them to be without merit.   Accordingly, the petition for

8    review is DENIED.

 9                               For the Court
10                               Catherine O’Hagan Wolfe, Clerk
11
12
13




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