Musthafa v. Garland

21-6137 Musthafa v. Garland BIA Navarro, IJ A208 097 184 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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 16th day of December, two thousand twenty5 two. [6] 7 PRESENT: 8 RAYMOND J. LOHIER, JR., 9 WILLIAM J. NARDINI, 10 EUNICE C. LEE, 11 Circuit Judges. 12 _____________________________________ [13] 14 MOHAMED IRFAN SHAHUL HAMEED 15 MUSTHAFA, 16 Petitioner, [17] 18 v. 21-6137 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ [24] 25 FOR PETITIONER: Visuvanathan Rudrakumaran,Esq., 26 Law Office of Visuvanathan 27 Rudrakumaran, New York, NY. [28] 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Anna E. Juarez, 3 Senior Litigation Counsel; Evan P. 4 Schultz, Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is DENIED. 12 Petitioner Mohamed Irfan Shahul Hameed Musthafa, a native 13 and citizen of Sri Lanka, seeks review of a February 11, 2021, 14 decision of the BIA affirming a March 9, 2018, decision of an 15 Immigration Judge (“IJ”) denying his application for asylum 16 and withholding of removal. 1 In re Mohamed Irfan Shahul 17 Hameed Musthafa, No. A 208 097 184 (B.I.A. Feb. 11, 2021), 18 aff’g No. A 208 097 184 (Immigr. Ct. N.Y. City Mar. 9, 2018). 19 We assume the parties’ familiarity with the underlying facts 20 and procedural history. 21 We construe the Government’s motion for summary denial 22 as its brief because Musthafa has filed his brief, and we 1 The IJ granted withholding and deferral of removal under the Convention Against Torture, and the BIA did not disturb that ruling. [2] 1 review the petition on its merits. See United States 2 v. Davis, 598 F.3d 10 , 13–14 (2d Cir. 2010) (holding that 3 summary denial is “a rare exception” limited to “truly 4 frivolous” appeals). Musthafa argues that the agency erred 5 in declining to consider asylum and withholding of removal 6 based on religion and imputed political opinion and in 7 declining to remand to permit him to present new evidence of 8 increased tensions between Buddhists and Muslims. 9 I. Asylum and Withholding of Removal 10 An applicant for asylum and withholding of removal has 11 the burden of showing past persecution or a fear of 12 persecution “on account of” a protected ground, “race, 13 religion, nationality, membership in a particular social 14 group, or political opinion.” 8 U.S.C. §§ 1101 (a)(42), 15 1158(b)(1)(B)(i), 1231(b)(3)(A). 16 The crux of Musthafa’s arguments on appeal concerns 17 whether the BIA properly deemed his claims for asylum based 18 on religion and imputed political opinion waived. When the 19 BIA has held a claim waived, “this Court’s review is limited 20 to whether the BIA erred in deeming the argument waived.” 21 Prabhudial v. Holder, 780 F.3d 553 , 555–56 (2d Cir. 2015). [3] 1 “[A]liens—like all other parties to litigation—are bound 2 by the concessions of freely retained counsel.” Hoodho v. 3 Holder, 558 F.3d 184, 192 (2d Cir. 2009). At his hearing 4 before the IJ, Musthafa, through counsel, stated that he had 5 no evidence to support a religious persecution claim, that he 6 was not raising a political opinion claim, and that he wanted 7 to brief claims based on particular social groups. 8 Accordingly, the BIA did not err in concluding that he failed 9 to raise religion and political opinion claims before the IJ. 10 Musthafa’s subsequent assertion in his written closing 11 submission that he merited relief based on imputed political 12 opinion did not relieve him of his prior concession. Id. at 13 192 (noting that only “‘egregious circumstances’ can free an 14 alien from his attorney’s admissions”). On this record, the 15 BIA reasonably determined that Musthafa had abandoned claims 16 based on religion and political opinion. See Prabhudial, 780 17 F.3d at 555 (“[W]e conclude that where the agency properly 18 applies its own waiver rule and refuses to consider the merits 19 of an argument that was not raised before the IJ, we will not 20 permit an end run around those discretionary agency 21 procedures by addressing the argument for the first time in [4] 1 a petition for judicial review.”). 2 II. Motion to Remand 3 We review a motion to remand for consideration of new 4 evidence for abuse of discretion. Li Yong Cao v. Dep’t of 5 Justice, 421 F.3d 149, 157 (2d Cir. 2005). The agency has 6 broad discretion to deny a motion to remand grounded in new 7 evidence and may do so, as relevant here, if the movant fails 8 to meet “the heavy burden of demonstrating a likelihood that 9 the new evidence presented would alter the result in the 10 case.” Id. at 156 (quotation marks omitted). 11 Musthafa, who is Muslim, argues that evidence of Buddhist 12 attacks on Muslims that occurred in Sri Lanka after his 2018 13 merits hearing warranted remand because those attacks 14 escalated religious tensions in the country and Musthafa had 15 been harassed on account of his religion in the past. But 16 Musthafa’s new evidence reflected that Buddhist militantism 17 against the Muslim minority began surging in 2009, long before 18 his 2018 merits hearing. On this record, the BIA did not 19 abuse its discretion by concluding that the events in 2019 20 represented a continuation of tensions between Muslims and 21 Buddhists and that remand was not warranted because Musthafa [5] 1 could have, but did not, press a claim of religious 2 persecution before the IJ. See Kaur v. BIA, 413 F.3d 232 , 3 233 (2d Cir. 2005) (an abuse of discretion may be found when 4 the BIA decision “provides no rational explanation, 5 inexplicably departs from established policies, is devoid of 6 any reasoning, or contains only summary or conclusory 7 statements”). 8 For the foregoing reasons, we construe the Government’s 9 motion for summary denial as its brief and DENY the petition 10 for review. All other pending motions and applications are 11 DENIED and stays VACATED. 12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court