     17-2934
     Butt v. Barr
                                                                                    BIA
                                                                             Verrillo, IJ
                                                                           A089 347 090

                         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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 3rd day of June, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MOHAMMAD BALAL BUTT,
14            Petitioner,
15
16                  v.                                           17-2934
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Amy Nussbaum Gell, New York, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Shelley R. Goad,
27                                    Assistant Director; Kristen A.
28                                    Giuffreda, Trial Attorney, Office
29                                    of Immigration Litigation, United
30                                    States Department of Justice,
31                                    Washington, DC.
32
1          UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DISMISSED in part and DENIED in part.

5          Petitioner Mohammad Balal Butt, a native and citizen of

6    Pakistan, seeks review of an August 23, 2017, decision of the

7    BIA affirming a September 30, 2016, decision of an Immigration

8    Judge   (“IJ”)      denying      cancellation            of   removal,      asylum,

9    withholding    of    removal,      and       relief      under   the   Convention

10   Against Torture (“CAT”).           In re Mohammad Balal Butt, No. A089

11   347 090 (B.I.A. Aug. 23, 2017), aff’g No. A089 347 090 (Immig.

12   Ct.   Hartford   Sept.     30,     2016).           We   assume      the   parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15         We have considered both the IJ’s and the BIA’s decisions

16   “for the sake of completeness.”                       Wangchuck v. Dep’t of

17   Homeland    Sec.,    448   F.3d     524,      528     (2d     Cir.   2006).      The

18   applicable standards of review are well established.                             See

19   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

20   510, 513 (2d Cir. 2009).

21   Cancellation of Removal

22         Our   jurisdiction      to     review       the     agency’s     denial     of

23   cancellation        of     removal           is     limited       to       colorable

                                              2
1    constitutional claims and questions of law.                      See 8 U.S.C.

2    § 1252(a)(2)(B)(i), (D); Barco-Sandoval v. Gonzales, 516 F.3d

3    35, 39-40 (2d Cir. 2008) (exceptional and extremely unusual

4    hardship      determinations       by       the    BIA    are    discretionary

5    judgments).      We review such claims de novo.                 See Pierre v.

6    Holder, 588 F.3d 767, 772 (2d Cir. 2009).                       When assessing

7    jurisdiction, we must “study the arguments asserted . . . to

8    determine,      regardless    of    the      rhetoric      employed      in   the

9    petition, whether it merely quarrels over the correctness of

10   the factual findings or justification for the discretionary

11   choices, in which case the court would lack jurisdiction, or

12   whether    it    instead    raises      a    ‘constitutional        claim’    or

13   ‘question of law,’ in which case the court could exercise

14   jurisdiction to review those particular issues.”                         Xiao Ji

15   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

16   2006).

17        A nonpermanent resident, such as Butt, may have his

18   removal    cancelled        if,    among          other    requirements,       he

19   demonstrates that his “removal would result in exceptional

20   and extremely unusual hardship” to his United States citizen

21   or   lawful     permanent    resident        spouse,      parent,   or    child.

22   8 U.S.C. § 1229b(b)(1)(D).              In relevant part, the agency



                                             3
1    denied relief based on Butt’s failure to show hardship to his

2    wife.

3          It would be an error of law if the agency ignored or

4    “seriously mischaracterize[d]” material facts, see Mendez v.

5    Holder, 566 F.3d 316, 323 (2d Cir. 2009). However, the record

6    reflects      that    the   IJ   and   BIA    properly    applied     existing

7    precedent       and   considered       Butt’s       evidence   of     hardship.

8    Hardship is a high standard that requires a showing that the

9    “qualifying       relatives       would      suffer     hardship      that    is

10   substantially different from, or beyond, that which would

11   normally be expected from the deportation of an alien with

12   close family members.”            In re Monreal-Aguinaga, 23 I. & N.

13   Dec. 56, 65 (B.I.A. 2001); see also In re Andazola-Rivas, 23

14   I. & N. Dec. 319, 322 (B.I.A. 2002) (noting that exceptional

15   and extremely unusual hardship is a “very high standard”).

16   The    agency    considers,       among     other    evidence,      “the   ages,

17   health, and circumstances of qualifying lawful permanent

18   resident and United States citizen relatives,” including how

19   a     lower     standard     of     living,     diminished          educational

20   opportunities, or adverse country conditions in the country

21   of removal might affect the relatives.                     In re Monreal-

22   Aguinaga, 23 I. & N. Dec. at 63; In re Andazola-Rivas, 23 I.



                                             4
1    & N. Dec. at 323; see also In re Gonzalez Recinas, 23 I. & N.

2    Dec. 467 (B.I.A. 2002).

3         The agency applied that standard.             It considered Butt’s

4    wife’s psychological records; her medical history, including

5    fertility treatments, and pain from a 2009 car accident; any

6    financial, cultural, and emotional hardship she would endure;

7    and the cumulative impact of the hardship factors.                     To the

8    extent that Butt argues that the agency gave too little weight

9    to certain evidence, the balancing of factors is beyond our

10   jurisdiction.    See Argueta v. Holder, 617 F.3d 109, 113 (2d

11   Cir. 2010).

12        Butt merely “quarrels over the [exercise of discretion

13   and the] correctness of the factual findings reached by the

14   agency,” which we lack jurisdiction to review.                   Emokah v.

15   Mukasey, 523 F.3d 110, 119 (2d Cir. 2008) (internal quotation

16   marks omitted); see also Xiao Ji Chen, 471 F.3d at 329.

17   Asylum, Withholding of Removal and CAT

18        As an initial matter, Butt’s brief waives review of the

19   denial   of   asylum   by   failing      to   challenge    the    agency’s

20   timeliness finding.     See Yueqing Zhang v. Gonzales, 426 F.3d

21   540, 541 n.1, 545 n.7 (2d Cir. 2005) (noting that petitioner

22   abandons issues and claims not raised in his brief).                   Absent

23   a   constitutional     claim   or       question    of    law,    we     lack

                                         5
1    jurisdiction to review the timeliness determination.                See 8

2    U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).               We therefore dismiss

3    the petition as to asylum.

4           As    to   the   withholding   and    CAT   claims,    substantial

5    evidence supports the agency’s determinations.               The remaining

6    claims are therefore denied.              For withholding of removal,

7    “the        applicant   must   establish      that    race,     religion,

8    nationality, membership in a particular social group, or

9    political opinion was or will be at least one central reason

10   for           persecuting       the         applicant.”          8 U.S.C.

11   §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also Matter of C-T-

12   L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010) (applying “one

13   central reason” standard to withholding).            Before the agency,

14   Butt’s claimed fear of persecution is premised on (1) imputed

15   anti-Pakistan political opinion because of his residence in

16   the United States and his marriage to a Bangladeshi woman,

17   and (2) membership in a particular social group of Pakistanis

18   married to Bangladeshis.         Although he now attempts to frame

19   his claim as one based on his familial relationship to his

20   wife and their religious beliefs, those grounds were not

21   raised before the agency and are not properly before us.              See

22   Lin Zhong v. U.S. Dep’t of Justice, 461 F.3d 101, 117-18 (2d



                                           6
1    Cir. 2006) (requiring petitioner to exhaust all issues before

2    the BIA).

3        As     the    agency   concluded,   Butt   did   not   establish   a

4    likelihood of future harm on account of a protected ground.

5    The IJ acknowledged that Butt’s wife was attacked in 2006 in

6    Pakistan for not wearing a hijab, being an American, and being

7    of Bangladeshi-descent, among other reasons, but the harm to

8    Butt’s wife does not compel the conclusion that Butt himself

9    would more likely than not be persecuted on a protected

10   ground.     See Melgar de Torres v. Reno, 191 F.3d 307, 313 n.2

11   (2d Cir. 1999) (“Although persecution of close family members

12   may support a well-founded fear of future persecution, it

13   does not form the basis for a finding of past persecution of

14   h[im].”).        The country conditions evidence reflects that

15   Pakistan is plagued by extremist violence and repression of

16   women, and that it has long had a strained relationship with

17   Bangladesh.       There is no evidence, however, that someone in

18   Butt’s circumstances would be targeted.          See Jian Xing Huang

19   v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that

20   “[i]n the absence of solid support in the record” for a claim

21   of future persecution, an applicant’s “fear is speculative at

22   best.”).



                                        7
1          Butt argues that the agency ignored evidence.           However,

2    the   IJ’s   decision   was   detailed      and   included   extensive

3    summaries of witness testimony and references to country

4    conditions.     See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169

5    (2d Cir. 2008) (The agency is not required to “expressly parse

6    or refute on the record each individual argument or piece of

7    evidence offered.” (internal quotation marks and citation

8    omitted)); see also Xiao Ji Chen, 471 F.3d at 336 n.17 (“[W]e

9    presume that an IJ has taken into account all of the evidence

10   before   him,    unless   the      record    compellingly     suggests

11   otherwise.”).

12         To receive protection under the CAT, an applicant must

13   “establish that it is more likely than not that he . . . would

14   be tortured if removed to the proposed country of removal.”

15   8 C.F.R. § 1208.16(c)(2).       Unlike withholding of removal, CAT

16   relief does not require a nexus to a protected ground.            See

17   id.   “Torture is defined as any act by which severe pain or

18   suffering,    whether   physical    or   mental,    is   intentionally

19   inflicted on a person . . . at the instigation of or with the

20   consent or acquiescence of a public official or other person

21   acting in an official capacity.”         8 C.F.R. § 1208.18(a)(1);

22   see also Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir.

23   2004).   Butt’s CAT claim, like his withholding claim, fails

                                        8
1    because there is no particularized evidence that he would be

2    tortured in Pakistan.        See Mu Xiang Lin v. U.S. Dep’t of

3    Justice,   432    F.3d    156,   160   (2d   Cir.   2005)   (requiring

4    “particularized evidence” beyond general country conditions

5    to support a CAT claim).          The general country conditions

6    evidence of extremist violence and anti-Bangladeshi sentiment

7    are insufficient to establish that Butt would be singled out

8    for torture.     Id.   Given the lack of particularized evidence

9    that he would be tortured or that the authorities would

10   acquiesce to his torture, the agency did not err by denying

11   CAT relief.      See Savchuck v. Mukasey, 518 F.3d 119, 123 (2d

12   Cir. 2008) (“[A]n alien will never be able to show that he

13   faces a more likely than not chance of torture if one link in

14   the chain cannot be shown to be more likely than not to

15   occur.” (quoting In re J-F-F-, 23 I. & N. Dec. 912, 918 n.4

16   (A.G. 2006))).

17       For the foregoing reasons, the petition for review is

18   DISMISSED in part and DENIED in remaining part.             As we have

19   completed our review, any stay of removal that the Court

20   previously granted in this petition is VACATED, and any

21   pending motion for a stay of removal in this petition is

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

23   this petition is DENIED in accordance with Federal Rule of

                                        9
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe,
5                              Clerk of Court
6




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