ASHIF v. BARR (2020)

SUMMARY ORDER

Petitioner Khondoker Zubair Ashif, a native and citizen of Bangladesh, seeks review of a November 28, 2018, decision of the BIA affirming an October 27, 2017, decision of an Immigration Judge (“IJ”) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Khondoker Zubair Ashif, No. A205 014 432 (B.I.A. Nov. 28, 2018), aff'g No. A205 014 432 (Immig. Ct. N.Y. City Oct. 27, 2017). We assume the parties’ familiarity with the underlying facts and procedural history.

In lieu of filing a brief, the government moves for summary denial and to stay briefing. Rather than determine if the petition is frivolous as required for summary denial, Pillay v. INS, 45 F.3d 14, 16–17 (2d Cir. 1995), we construe the government's motion as an opposition brief and deny the petition on the merits.

Ashif did not allege past persecution, and thus had the burden to establish eligibility for asylum by demonstrating a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(2); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). This showing “requires that the alien present credible testimony that he subjectively fears persecution and establish that his fear is objectively reasonable.” Ramsameachire, 357 F.3d at 178. A fear is objectively reasonable “even if there is only a slight, though discernible, chance of persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000). On the other hand, a fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005).

Under the circumstances of this case, we have reviewed both the IJ's and BIA's decisions “for the sake of completeness.” Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review factual findings for substantial evidence and questions of law de novo. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Having done so, we find no error in the agency's determination that Ashif failed to demonstrate an objectively reasonable fear of future persecution.

Ashif asserts that following his arrival in the United States he was falsely charged with murder in Bangladesh, and that if he returns, the Bangladeshi authorities will arrest and torture him. But while Ashif presented evidence showing that he is in fact being prosecuted in a criminal case in Bangladesh, his evidence also suggests that he is receiving adequate protections, in that a warrant was issued, he has an attorney, and three of his co-defendants there were arrested but released on bail. Moreover, although the country conditions reports cited by Ashif reflect a politicized and sometimes corrupt judiciary, as well as court backlogs, arbitrary and warrantless arrests by security forces, and unjustified detentions of opposition leaders, Ashif has presented no evidence to suggest that he himself would be subject to such measures, particularly since he was not an opposition leader. Accordingly, his fear based on these general country conditions is speculative at best. See Jian Xing Huang, 421 F.3d at 129.

Significantly, Ashif did not allege that his brother or any of his other co-defendants have suffered any physical harm while awaiting trial in Bangladesh. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (holding that lack of harm to similarly-situated family members undermines objective reasonableness of applicant's fear). And Ashif's demonstrated lack of knowledge about the details of his case, and lack of action beyond hiring an attorney, further supports the conclusion that he lacks a reasonable fear of persecution in connection with his pending criminal charges.

Since Ashif's failure to demonstrate an objectively reasonable fear of persecution is dispositive of his requests for asylum, withholding of removal, and CAT relief, see Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010), the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.