         11-866-ag
         Sarkar v. Holder
                                                                                       BIA
                                                                               A073 534 922
                             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 17th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                GUIDO CALABRESI,
 9                PETER W. HALL,
10                    Circuit Judges.
11       _______________________________________
12
13       RAJA SARKAR,
14                Petitioner,
15
16                          v.                                  11-866-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Raja Sarkar, pro se, East Elmhurst,
24                                     New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; Joanna L.
29                                     Watson, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED in part and DISMISSED in part.

 5       Raja Sarkar, a native and citizen of Bangladesh, seeks

 6   review of a February 17, 2011, decision of the BIA denying

 7   his motion to reopen. In re Raja Sarkar, No. A073 534 922

 8   (B.I.A. Feb. 17, 2011).    We assume the parties’ familiarity

 9   with the underlying facts and procedural history of this

10   case.

11       We review the BIA’s denial of Sarkar’s motion to reopen

12   for abuse of discretion.    Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006).   An alien may file only one motion to reopen

14   and must do so within 90 days of the agency’s final

15   administrative decision.    8 U.S.C. § 1229a(c)(7)(A), (C);

16   8 C.F.R. § 1003.2(c)(2).    It is undisputed that Sarkar’s

17   November 2010 motion to reopen was untimely, because the BIA

18   issued its final order of removal in 2002, and number-

19   barred, because it is his third motion to reopen.     See

20   8 U.S.C. § 1229a(c)(7)(A), (C)(i); see also 8 C.F.R.

21   § 1003.2(c)(2).    However, the time and number limitations

22   for filing a motion to reopen do not apply if the motion is

23   “based on changed country conditions arising in the country

                                    2
 1   of nationality or the country to which removal has been

 2   ordered, if such evidence is material and was not available

 3   and would not have been discovered or presented at the

 4   previous proceedings.”   8 U.S.C. § 1229a(c)(7)(C)(ii); see

 5   also 8 C.F.R. § 1003.2(c)(3)(ii).

 6       In this case, the agency did not abuse its discretion

 7   in denying Sarkar’s motion to reopen as untimely and number

 8   barred because he failed to demonstrate changed country

 9   conditions.   Contrary to his assertions in his brief, the

10   BIA’s February 2011 decision indicated that it had

11   considered all of the evidence cited by Sarkar in support of

12   his motion.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

13   F.3d 338 n.17 (2d Cir. 2006) (presuming that the agency “has

14   taken into account all of the evidence before [it], unless

15   the record compellingly suggests otherwise”).   The BIA also

16   did not abuse its discretion in declining to credit Sarkar’s

17   evidence that his family in Bangladesh was being harassed by

18   Muslim fundamentalists given the IJ’s underlying adverse

19   credibility determination.   See Qin Wen Zheng v. Gonzales,

20   500 F.3d 143, 146-49 (2d Cir. 2007) (relying on the doctrine

21   falsus in uno, falsus in omnibus to conclude that the agency

22   may decline to credit documentary evidence submitted with a


                                   3
 1   motion to reopen by an alien who was found not credible in

 2   the underlying proceeding) (citing Siewe v. Gonzales, 480

 3   F.3d 160, 170 (2d Cir. 2007)).    Because Sarkar’s brief does

 4   not address the BIA’s conclusion that the 2009 State

 5   Department report was not, alone, sufficient to merit

 6   reopening of his case, we decline to reach that issue.      See

 7   Yueqing Zhang v. Gonzales, 426 F.3d 540, 541, n.1, 545, n.7

 8   (2d Cir. 2005).

 9       Moreover, broadly construing Sarkar’s arguments as

10   challenging the BIA’s determination that the 2009 State

11   Department report was insufficient to demonstrate changed

12   conditions, see Ruiz-Martinez v. Mukasey, 516 F.3d 102, 120

13   (2d Cir. 2008), nothing in the 2009 report independently

14   supported reopening.   The report noted that violence against

15   religious minorities was a problem “occasionally,” but that

16   the current Bangladeshi government was “sensitive to the

17   religious sentiments of most citizens,” and had enacted a

18   law intended to expedite the return of property expropriated

19   from Hindus following the 1965 India-Pakistan war.     Because

20   the 2009 report does not offer any basis for Sarkar’s fear

21   of future persecution in Bangladesh, the BIA reasonably

22   concluded that the report did not merit the reopening of


                                   4
 1   Sarkar’s immigration proceedings.   Jian Xing Huang v. U.S.

 2   INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that absent

 3   “solid support” in the record that a fear is objectively

 4   reasonable, a claim of future persecution is “speculative at

 5   best.”).

 6       Finally, we dismiss the petition with respect to

 7   Sarkar’s challenge to the IJ’s underlying adverse

 8   credibility determination and conduct of his November 1998

 9   asylum hearing.   We lack jurisdiction to review the IJ’s or

10   BIA’s prior decisions because Sarkar timely petitioned for

11   review only of the denial of his third motion to reopen.

12   See 8 U.S.C. § 1252(b)(1); see also Malvoisin v. INS, 268

13   F.3d 74, 75 (2d Cir. 2001) (“[C]ompliance with the time

14   limit for filing a petition for review of the BIA’s final

15   order is a strict jurisdictional prerequisite.”); Ke Zhen

16   Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (providing

17   that when an alien files a timely petition for review from

18   the denial of a motion to reopen, but not from the

19   underlying affirmance of a removal order, review is confined

20   to the denial of the motion).

21       For the foregoing reasons, the petition for review is

22   DENIED in part and DISMISSED in part.   As we have completed

23   our review, any stay of removal that the Court previously
                                     5
1   granted in this petition is VACATED, and any pending motion

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

3   Any pending request for oral argument in this petition is

4   DENIED in accordance with Federal Rule of Appellate

5   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

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