         08-2615-ag
         Chowdhury v. Holder
                                                                                        BIA
                                                                                  Defonzo, IJ
                                                                                 A96 426 151
                                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 16 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                 DENNIS JACOBS,
 8                              Chief Judge,
 9                 ROSEMARY S. POOLER,
10                 REENA RAGGI,
11                              Circuit Judges.
12       _____________________________________
13
14       FARHADUL MANNAN CHOWDHURY,
15                Petitioner,
16
17                             v.                               08-2615-ag
18                                                              NAC
19       ERIC H. HOLDER JR., *
20       UNITED STATES ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24
25


                 *
                 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 PETITIONER:        Salim Sheikh, New York, New York.
 2
 3   FOR RESPONDENT:        Gregory G. Katsas, Assistant Attorney
 4                          General; Christopher C. Fuller,
 5                          Senior Litigation Counsel; Zoe J.
 6                          Heller, Trial Attorney, Office of
 7                          Immigration Litigation, Civil
 8                          Division, U.S. Department of Justice,
 9                          Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

12   decision of the Board of Immigration Appeals (“BIA”), it is

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

14   review is DISMISSED in part and DENIED in part.

15       Farhadul Mannan Chowdhury, a native and citizen of

16   Bangladesh, seeks review of a May 6, 2008 order of the BIA

17   affirming the October 19, 2005 decision of Immigration Judge

18   (“IJ”) Paul A. Defonzo, denying his application for asylum,

19   withholding of removal, and relief under the Convention

20   Against Torture (“CAT”). In re Farhadul Mannan Chowdhury,

21   No. A96 426 151 (B.I.A. May 6, 2008), aff’g No. A96 426 151

22   (Immig. Ct. N.Y. City Oct. 19, 2005).   We assume the

23   parties’ familiarity with the underlying facts and

24   procedural history of this case.

25       When the BIA affirms and supplements the IJ’s decision

26   but does not adopt the IJ’s adverse credibility

27   determination, we review the IJ’s decision as modified by


                                   2
1    the BIA decision.    Xue Hong Yang v. U.S. Dep’t of Justice,

2    426 F.3d 520, 522 (2d Cir. 2005).       Here, because the BIA did

3    not adopt the IJ’s adverse credibility finding, but

4    explicitly stated that it was reviewing the claim on the

5    assumption that petitioner’s testimony was credible, we

6    assume the credibility of that testimony.       See Yan Chen v.

7    Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

8         We review the agency’s factual findings under the

9    substantial evidence standard.       8 U.S.C. § 1252(b)(4)(B);

10   see also Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d

11   281, 289 (2d Cir. 2007).    We review de novo questions of law

12   and the application of law to undisputed fact.       Salimatou

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

14   I.   Asylum

15        As an initial matter, we do not have jurisdiction to

16   review the IJ’s determination that Chowdhury failed to

17   establish “extraordinary circumstances” excusing his failure

18   to file his asylum application within the one-year deadline.

19   8 U.S.C. § 1158(a)(3); see also 8 C.F.R. § 208.4(a)(5)

20   (“extraordinary circumstances” refers to “events or factors

21   directly related to the failure to meet the 1-year

22   deadline).    Chowdhury argues that the IJ failed to consider


                                      3
1    his argument that he did not apply for asylum because he

2    thought he could gain residency through employment.

3    However, this argument amounts to nothing more than a

4    challenge to the IJ’s fact-finding with respect to the one-

5    year bar, which this Court does not have jurisdiction to

6    review.    See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji

7    Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330-32 (2d Cir.

8    2006).    Accordingly, to the extent Chowdhury challenges the

9    pretermission of his untimely asylum application, we dismiss

10   the petition for review.

11   II.   Withholding of Removal

12         We also find that the BIA properly denied Chowdhury’s

13   application for withholding of removal, which is not subject

14   to the one-year bar. With regard to Chowdhury’s testimony

15   that he was threatened, harassed, verbally abused, and

16   manhandled by his former girlfriend’s uncle, a major in the

17   Bangladeshi army, the BIA properly found that he failed to

18   provide sufficient evidence that he suffered this abuse on

19   account of a protected ground.       See 8 U.S.C. § 1101(a)(42).

20   By Chowdhury’s own admission, the main goal of his

21   girlfriend’s uncle was to break up their relationship.

22   While Chowdhury believed that the reason was his “religious



                                      4
1    independence,” this is insufficient to bring the uncle’s

2    harassment within the ambit of refugee protection.    Cf.

3    Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir. 2006) (“The

4    critical showing that an applicant must make . . . is that

5    he has suffered past persecution, or fears future

6    persecution, on the basis of religion.”).    Accordingly, the

7    BIA’s nexus finding was supported by substantial evidence.

8    See 8 U.S.C. § 1252(b)(4)(B); see also Manzur, 494 F.3d at

9    289.    This finding is dispositive of Chowdhury’s claimed

10   fear of future persecution by his former girlfriend’s uncle.

11          In 1982, while Chowdhury was in college and a member of

12   the Bangladesh National Party (BNP), he was physically

13   removed from a rickshaw by student members of a rival

14   political party, held at their “compound” for at least a

15   day, and beaten.    The BIA found without further explanation

16   that “this incident alone does not rise to the level of

17   persecution.”    It is well established that beatings and

18   torture can constitute persecution, particularly when they

19   occur in the context of a detention.    See, e.g., Beskovic v.

20   Gonzales, 467 F.3d 223, 226 (2d Cir. 2006); Yan Chen, 417

21   F.3d at 272, 275.    The BIA did not explain why the beatings

22   of Chowdhury occurring in the context of a detention by


                                     5
1    members of the rival party did not constitute past

2    persecution.   See Beskovic, 467 F.3d at 227 (“Whether or not

3    [petitioner] is entitled to a presumption of future

4    persecution requires a determination, based on the correct

5    legal standard, of whether he suffered past persecution.

6    Because we cannot determine whether the IJ correctly

7    assessed [petitioner’s] claim of past persecution, we are

8    stymied.”).

9        However, even if the BIA’s explanation was insufficient,

10   there is no evidence in the record that the government

11   failed to prevent the actions of the student members of the

12   rival political party.   See Pavlova v. INS, 441 F.3d 82, 91

13   (2d Cir. 2006) (“[W]e have never held that direct

14   governmental action is required to make out a claim of

15   persecution.   On the contrary, it is well established that

16   private acts may be persecution if the government has proved

17   unwilling to control such action.”) (internal quotation

18   marks omitted).   Because Chowdhury has not presented

19   evidence that the government was “unwilling to control such

20   actions,” id., he cannot establish persecution based on this

21   record.   Remand is therefore futile.   See Cao He Lin v. U.S.

22   Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005).



                                    6
1    III. CAT Relief

2        Finally, we find that the BIA’s denial of CAT relief is

3    supported by substantial evidence.    Chowdhury bases his CAT

4    claim on the same evidence of his withholding of removal

5    claim, and he fails to indicate anything in the record that

6    would a compel a conclusion contrary that he would more

7    likely than not be tortured.    See 8 U.S.C. § 1252(b)(4)(B);

8    see also Manzur, 494 F.3d at 289.

9        For the foregoing reasons, the petition for review is

10   DISMISSED in part and DENIED in part.    Any pending motion

11   for a stay of removal in this petition is DISMISSED as moot.

12

13                                  FOR THE COURT:
14                                  Catherine O’Hagan Wolfe, Clerk
15
16
17




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