597 F. App'x 14
2d Cir.2015Background
- Petitioner MD Saydur (native/citizen of Bangladesh) had a final removal order from November 2010 and filed a motion to reopen in April 2013.
- Saydur sought to reopen removal proceedings based on changed country conditions in Bangladesh and submitted supporting materials (declaration by Parikh and internet articles).
- He did not attach an asylum application or the full supporting application for relief with his motion to reopen.
- The Board of Immigration Appeals (BIA) denied the motion as untimely and for failure to comply with the requirement that motions to reopen for relief include the appropriate application and supporting documentation.
- The Second Circuit reviewed the BIA’s denial for abuse of discretion and considered whether the evidence showed a specific risk of persecution to Saydur (a Muslim married to a Christian with a Christian child).
Issues
| Issue | Saydur's Argument | Government's Argument | Held |
|---|---|---|---|
| Timeliness of motion to reopen | Motion should be considered despite being filed >90 days because based on changed country conditions | Motion is untimely (filed >2 years after final order) and not eligible for exception | Denied — motion untimely and exception not satisfied |
| Requirement to include application for relief | BIA should consider country-condition evidence without asylum application attached | Regulations require that motions to reopen to submit an application for relief must include the application and supporting docs | Held for Government — BIA properly refused to consider evidence because no asylum application accompanied the motion |
| Sufficiency of country-condition evidence | Submitted materials show worsening conditions for religious minorities and establish risk to Saydur (Muslim with Christian wife/child) | Evidence was general and did not demonstrate a specific risk to Saydur personally | Held for Government — evidence was too general to establish a specific claim of persecution |
| Presumption when motions to reopen are unopposed | Denial of an unopposed, non-frivolous motion to reopen should be presumptively an abuse of discretion | No such presumption; burden rests on movant and government need not oppose | Rejected — no bright-line presumption; movant bears burden to establish entitlement |
Key Cases Cited
- Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) (motions to reopen are disfavored; standard of review)
- INS v. Doherty, 502 U.S. 314 (1992) (recognizing the disfavored status of motions to reopen)
- Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir. 2006) (agency interpretations of its own regulations accorded substantial deference)