     15-1785
     Baig v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A072 218 988
                             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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   25th day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            GERARD E. LYNCH,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   MIRZA NASIR BAIG, AKA MIRZA ASIF
14   BAIG,
15            Petitioner,
16
17                      v.                                           15-1785
18                                                                   NAC
19   JEFFERSON B. SESSIONS III, UNITED
20   STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                       Thomas H. Nooter, Freeman, Nooter
25                                         & Ginsberg, New York, N.Y.
26
27   FOR RESPONDENT:                       Benjamin C. Mizer, Principal
28                                         Deputy Assistant Attorney
29                                         General; Shelley R. Goad,
30                                         Assistant Director; Nancy Kwang
1                                   Canter, Trial Attorney, Office
2                                   of 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 is

9    DENIED.

10         Petitioner Mirza Nasir Baig, a native and citizen of

11   Pakistan, seeks review of a May 5, 2015, decision of the BIA

12   affirming a September 18, 2013, decision of an Immigration Judge

13   (“IJ”) denying Baig’s motion to terminate proceedings and his

14   application for asylum, withholding of removal, and relief

15   under the Convention Against Torture (“CAT”).            In re Mirza

16   Nasir Baig, No. A072 218 988 (B.I.A. May 5, 2015), aff’g No.

17   A072 218 988 (Immig. Ct. N.Y. City Sept. 18, 2013).        We assume

18   the   parties’   familiarity   with   the   underlying    facts   and

19   procedural history in this case.

20         We have reviewed the IJ’s decision as modified and

21   supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of

22   Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales,

23   417 F.3d 268, 271 (2d Cir. 2005). The BIA declined to rely on

24   the IJ’s findings that Baig’s particular social group was not


                                     2
1    legally cognizable and that Baig did not merit asylum as a matter

2    of discretion; the BIA did determine that Baig suffered no past

3    persecution.   The applicable standards of review are well

4    established: we review factual findings for substantial

5    evidence, legal issues de novo, and the denial of a motion to

6    terminate for abuse of discretion.       See 8 U.S.C.

7    § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

8    Cir. 2009); Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005).

9    I.   Motion to Terminate

10        Baig argues that the five-year statute of limitations

11   period of 8 U.S.C. § 1256(a) for rescission of lawful permanent

12   resident (“LPR”) status bars the initiation of his removal

13   proceedings.     However,   as   the   Government   argues,   Baig’s

14   argument is foreclosed by Adams v. Holder, 692 F.3d 91, 101-08

15   (2d Cir. 2012), in which we held that § 1256(a)’s statute of

16   limitations does not apply to removal proceedings.

17        We reject Baig’s assertion that our holding in Adams is not

18   binding because it was “essentially dicta.”         Adams held (1)

19   that § 1256(a) does not apply to immigrants who acquire LPR

20   status through consular processing, and (2) that “§ 1256(a)’s

21   limitations period on rescission does not apply to removal.”

22   Id. at 93.   We explained that our second holding was consistent

                                      3
1    with “the majority of our sister circuits to have considered

2    the question,” listed id. at 101-02.     Our second holding in

3    Adams is not dicta and is binding in this case.      Jones v.

4    Coughlin, 45 F.3d 677, 679 (2d Cir. 1995) (“A decision of a panel

5    of this Court is binding unless and until it is overruled by

6    the Court en banc or by the Supreme Court.”)     The agency

7    therefore did not abuse its discretion in denying Baig’s motion

8    to terminate.

9    II. Asylum & Related Relief

10        Absent past persecution, an alien may establish

11   eligibility for asylum by demonstrating a well-founded fear of

12   future persecution, which is a “subjective fear that is

13   objectively reasonable.”   Dong Zhong Zheng v. Mukasey, 552 F.3d

14   277, 284 (2d Cir. 2009) (internal quotation marks omitted); see

15   8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2).

16        The BIA assumed without deciding that Baig had established

17   membership in a particular social group, but affirmed the IJ’s

18   conclusion that Baig had not established an objectively

19   reasonable fear of persecution.    As evidence of his fear of

20   persecution, Baig testified that the Taliban in Pakistan mainly

21   targets foreigners and Americans for their money, and that he

22   and his family will be viewed as Americans because they have

                                    4
 1   been living in the United States for several years.      As

 2   evidence, he cited newspapers he read; television reports he

 3   watched; what his father told him; the experience of somebody

4    he knew who was killed when he returned to Pakistan from Germany;

5    Baig’s attempted kidnapping at a Pakistani airport in 2006 when

6    two men in civilian clothing stopped him and questioned him (but

7    fled when Baig yelled); the killing of the American wife of his

8    former brother-in-law by two men on motorcycles; a U.S.

 9   Department of State travel warning cautioning Americans against

10   traveling to Pakistan; and several news articles describing

11   killings and kidnappings of foreigners in Pakistan.

12        However, the agency explicitly considered this evidence

13   and reasonably concluded that Baig’s fear of future persecution

14   was not objectively reasonable.      See Jian Xing Huang v. U.S.

15   INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid

16   support in the record[,] . . .   [a] fear [of future persecution]

17   is speculative at best.”); Xiao Ji Chen v. U.S. Dep’t of Justice,

18   471 F.3d 315, 342 (2d Cir. 2006) (observing that the weight

19   accorded to an applicant’s evidence “lie[s] largely within the

20   discretion of the IJ” (internal quotation marks omitted)); see

21   also Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.

22   2008) (“We do not ourselves attempt to resolve conflicts in

                                      5
 1   record evidence, a task largely within the discretion of the

 2   agency.”).    The only evidence Baig provided of specific harm

 3   to himself (the attempted kidnapping) did not rise to the level

 4   of persecution; it occurred in 2006; and Baig did not know who

 5   the men were or why they had approached him.          Jian Xing Huang,

 6   421 F.3d at 129.       As the agency concluded, none of Baig’s

 7   evidence showed that persons similarly situated (i.e., persons

 8   perceived as being wealthy Americanized Pakistanis) have been

 9   targeted in Pakistan.       Although one of the news articles stated

10   that “[k]idnapping has become a big business in Pakistan in

11   recent years,” it also stated that “it is not just foreigners

12   who are [at] risk.”        Therefore, while Baig presented evidence

13   of the high rates of crime and kidnapping in Pakistan, the agency

14   did not err in finding speculative his claim that he would be

15   targeted    for    being    perceived   as   a   wealthy   Americanized

16   Pakistani    and   that    he   therefore    failed   to   establish   an

17   objectively reasonable fear of future persecution.            Jian Xing

18   Huang, 421 F.3d at 129; Xiao Ji Chen, 471 F.3d at 342; Jian Hui

19   Shao, 546 F.3d at 169-72.

20       Accordingly, because the agency reasonably found that Baig

21   failed to demonstrate a well-founded fear of persecution, it

22   did not err in denying asylum or in concluding that he

                                         6
1   necessarily failed to meet the higher burden required for

2   withholding of removal or his burden for CAT relief.   See Lecaj

3   v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).

4       For the foregoing reasons, the petition for review is

5   DENIED.   Petitioner’s request for oral argument is DENIED in

6   accordance with Federal Rule of Appellate Procedure 34(a)(2),

7   and Second Circuit Local Rule 34.1(b).

8                                FOR THE COURT:
9                                Catherine O’Hagan Wolfe, Clerk




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