Opinion
No. 09-2101-ag.
July 2, 2010.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Amy N. Gell, Gell Gell, New York, NY, for Petitioners.
Andrew B. Insegna, Trial Attorney, Office of Immigration Litigation (Tony West, Assistant Attorney General; Daniel E. Goldman, Senior Litigation Counsel, Office of Immigration Litigation, on the brief), Civil Division, U.S. Department of Justice, Washington, DC, for Respondents.
PRESENT: ROGER J. MINER, JOSÉ A. CABRANES and RICHARD C. WESLEY, Circuit Judges.
SUMMARY ORDER
Petitioners Mohammed Jafar Ullah, Mamtaj Begum, Jahed Mohammed JafaruUah, Fahad Mohammed JafaruUah, and Shaheen Akhter, natives and citizens of Bangladesh, seek review of the orders of the BIA denying their motion to reopen their removal proceedings. We assume the parties' familiarity with the underlying facts and the procedural history of the case.
Petitioners Mohammed Jafar Ullah and Mamtaj Begum are husband and wife, respectively, and the remaining petitioners are their children.
We review the BIA's denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). An alien who has been ordered removed may typically file one motion to reopen, but he or she must do so within 90 days of the final administrative decision. 8 U.S.C. § 1229a(c)(7)(A), 1229a(c)(7)(C)(i). There is no dispute that, with respect to each petitioner, the motion to reopen that is the subject of this petition was untimely and number-barred. See id.; 8 C.F.R. § 1003.2(c)(2). However, seeking to avoid these procedural restrictions, petitioners argued to the BIA that "changed country conditions" in Bangladesh excused them from the time limits on motions to reopen. 8 U.S.C. § 1229a(c)(7)(C)(ii).
In a May 14, 2009 order, the BIA denied the motion as to petitioners Mamtaj Begum, Jahed Mohammed JafaruUah, Fahad Mohammed JafaruUah, and Shaheen Akhter. The agency reasoned that these petitioners had "not adequately demonstrated changed country circumstances in Bangladesh since their last motion in 2008 or even since their removal hearing in 1999 to support their claim that their fears are well-founded or that there is a clear probability of persecution or torture if they are forced to return to Bangladesh." Having reviewed the documentation that petitioners submitted in support of their motion, we conclude that substantial evidence supports the BIA's conclusion that these four petitioners failed to establish changed country conditions in support of their motion to reopen. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). Moreover, a reasonable fact-finder would not be compelled to conclude that the BIA ignored any material evidence that petitioners submitted. See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006). Accordingly, with respect to petitioners Mamtaj Begum, Jahed Mohammed JafaruUah, Fahad Mohammed JafaruUah, and Shaheen Akhter, the petition for review is denied.
In a separate May 14, 2009 order, the BIA denied the motion to reopen by Mohammed Jafar Ullah based on the agency's "departure bar" regulation, 8 C.F.R. § 1003.2(d), reasoning that it lacked jurisdiction to consider the motion because Ullah had been removed from the United States. On appeal, Ullah relies on William v. Gonzales, 499 F.3d 329 (4th Cir. 2007), to argue that the departure bar regulation "conflicts" with the current provisions of the Immigration and Nationality Act ("INA") relating to motions to reopen removal proceedings, 8 U.S.C. § 1229a(c)(7). We decline to address this argument. We do so because, even if we were to resolve the issue in Ullah's favor, a remand to the BIA would be futile. "[O]ur decision to uphold the agency decision or to remand for further proceedings depends on how `confidently' we can `predict that the agency would reach the same decision absent the errors that were made.'" Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008) (quoting Chen v. U.S. Dep't of Justice, 471 F.3d 315, 339 (2d Cir. 2006)). Ullah's motion, which was otherwise time-and number-barred, was based on the same legal argument — i.e., "changed country conditions" in Bangladesh, 8 U.S.C. § 1229a(c)(7)(C)(ii) — and similar supporting documentation as the motion filed by the other members of his family. Because we have already concluded that the BIA's denial of the motion to reopen as to the other four petitioners was not an abuse of its discretion, we are "confident[]" that the agency would reach the same conclusion as to Ullah if we were to remand and that it would be within its discretion to do so. Accordingly, Ullah's petition is denied.
In In re Armendarez-Mendez, 24 I. N. Dec. 646 (BIA 2008), the BIA rejected the interpretation of the INA offered by the Fourth Circuit in William. Id. at 653-60. At least two of our sister circuits have reached a similar conclusion as that reached by the BIA. See Rosillo-Puga v. Holder, 580 F.3d 1147, 1153-58 (10th Cir. 2009) (expressly rejecting the analysis of the William majority); Pena-Muriel v. Gonzales, 489 F.3d 438, 441-43 (1st Cir. 2007) (rejecting the argument that the departure bar regulation was impliedly repealed by the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-208, 110 Stat. 3009 (1996)); see also Mendiola v. Holder, 585 F.3d 1303, 1310 (10th Cir. 2009) (following Rosillo-Puga). But see Coyt v. Holder, 593 FJd 902, 907 (9th Cir. 2010) (holding that the departure bar "cannot apply to cause the withdrawal of an administrative petition filed by a petitioner who has been involuntarily removed").
We have reviewed all of petitioners' arguments and find them to be without merit. Accordingly, the petition for review is DENIED.