     17-1667
     Faruk v. Sessions
                                                                                   BIA
                                                                           A087 998 865
                              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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 3rd day of August, two thousand eighteen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            REENA RAGGI,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   OMAR FARUK,
14            Petitioner,
15
16                       v.                                      17-1667
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Omar Faruk, pro se, Brooklyn, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; Anthony P.
27                                       Nicastro, Assistant Director; Dana
28                                       M. Camilleri, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of
31                                       Justice, 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 DENIED.

5        Petitioner     Omar    Faruk,       a   native   and    citizen    of

6    Bangladesh, seeks review of the BIA’s denial of his motion to

7    reopen.   See In re Omar Faruk, No. A 087 998 865 (B.I.A. May

8    1, 2017).

9        In lieu of filing a brief, the Government moves for

10   summary   denial   of   Faruk’s   petition     for   review    which   is

11   warranted only if the petition is frivolous.               See Pillay v.

12   INS, 45 F.3d 14, 17 (2d Cir. 1995).           Because Faruk has filed

13   his merits brief, we need not resolve whether his petition is

14   frivolous; rather, we treat the Government’s motion as a

15   response to that brief and deny the petition.              In so doing,

16   we assume the parties’ familiarity with the underlying facts

17   and procedural history in this case.

18       Faruk argues that the BIA erred in not reviewing the

19   immigration judge’s (“IJ’s”) adverse credibility

20   determination, on the basis of which the IJ denied his

21   underlying applications for asylum, withholding of removal,
                                         2
1    and relief under the Convention Against Torture (“CAT”).

2    But Faruk cannot now challenge that determination because

3    his petition is timely only as to the BIA’s denial of his

4    motion to reopen.    See Kaur v. BIA, 413 F.3d 232, 233 (2d

5    Cir. 2005) (noting that we are precluded from reviewing

6    underlying removal order on petition for review of denial

7    of motion to reopen).

8        To    the   extent   that   Faruk    challenges   the    denial   of

9    reopening, we review that denial for abuse of discretion; see

10   i.d., which we do not identify here.            It is undisputed that

11   Faruk’s 2016 motion to reopen was untimely because it was

12   filed more than two years after the BIA’s original decision

13   affirming the IJ’s denial of asylum, withholding of removal,

14   and CAT relief.      See 8 U.S.C. § 1229a(c)(7)(C)(i) (setting

15   90-day    deadline       for    motion     to     reopen);    8 C.F.R.

16   § 1003.2(c)(2) (same).

17       In urging otherwise, Faruk relies on evidence of changed

18   country    conditions      in    Bangladesh.           See    8 U.S.C.

19   § 1229a(c)(7)(C)(ii) (stating that time limitation does not

20   apply if reopening is “based on changed country conditions

21   arising in the country of nationality . . . if such evidence
                                        3
1    is material and was not available and would not have been

2    discovered or presented at the previous proceedings”); see

3    also 8 C.F.R. §1003.2©(3)(ii).                Specifically, Faruk asserts

4    that the Awami League, which he claims persecuted him in the

5    past based on his support of the Bangladesh Nationalist Party,

6    was emboldened by its 2014 electoral victory and that, in

7    2015 and 2016, its members were looking for Faruk and harmed

8    and threated his family.

9           The BIA did not err in determining that the alleged

10   changed        conditions      were   not      material;       see    8   U.S.C.

11   § 1229a(c)(7)(C)(ii), given the agency’s prior determination,

12   upheld    by     this   court,    that       Faruk’s   claim    of   Bangladesh

13   Nationalist Party membership was not credible.                   See Qin Weng

14   Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) (reasoning

15   that     BIA     may    rely    on    underlying       adverse       credibility

16   determination to deny motion to reopen); see also Faruk v.

17   Lynch, 660 F. App’x 82, 83-84 (2d Cir. 2016) (denying Faruk’s

18   petition challenging adverse credibility determination).

19          For the foregoing reasons, the petition for review is

20   DENIED.        As we have completed our review, the Government’s

21   motion for summary denial and Faruk’s motion for a stay of
                                              4
1   removal are DENIED as moot.       Any pending request for oral

2   argument in this petition is DENIED in accordance with Federal

3   Rule of Appellate Procedure 34(a)(2), and Second Circuit

4   Local Rule 34.1(b).

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




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