Abu Hasan Mahmud Parvez v. PETER D. KEISLER, Acting Attorney General

Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney *
General Peter D. Keisler is substituted for former Attorney General
Alberto R. Gonzales as respondent.
Of the Ninth Circuit, sitting by designation. **
United States Court of Appeals
For the First Circuit
No. 06-1849
ABU HASAN MAHMUD PARVEZ,
Petitioner,
v.
PETER D. KEISLER, Acting Attorney General *
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge
Tashima, Senior Circuit Judge, **
and Howard, Circuit Judge.
William E. Graves Jr. for petitioner.
Peter D. Keisler, Assistant Attorney General, Nancy E.
Friedman, Office of Immigration Litigation Attorney, and Richard M.
Evans, Office of Immigration Litigation Assistant Director, for
respondent.
November 2, 2007

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Beginning in November 2002, the Attorney General instituted 1
the National Security Entry-Exit Registration System (NSEERS)
program, which required men from certain countries to report in
person to the former Immigration and Naturalization Service (INS)
to register their presence in the United States. 67 Fed. Reg.
-2-
LIPEZ, Circuit Judge. The petitioner, Abu Hasan Mahmud
Parvez, a native and citizen of Bangladesh, seeks review of a
decision by the Board of Immigration Appeals ("BIA") denying his
motion to reopen proceedings to enable him to renew his request for
cancellation of removal and to apply for asylum and withholding of
removal. Parvez also claims that the BIA deprived him of his right
to due process by failing to adjudicate his motion for a stay of
voluntary departure. We deny his petition for review.
I.
Parvez entered the United States in 1991 on a diplomatic
visa, as an assistant to his uncle, a Bangladeshi diplomat. Soon
afterward, he applied for and was granted student status. He
attended college for one year, after which he remained in the
United States despite the expiration of his visa. In 1998, Parvez
married a fellow Bangladeshi who was in the process of applying for
permanent legal residence. Together they had a son, who is a U.S.
citizen.
In 2003, Parvez was placed in removal proceedings by the
Department of Homeland Security (“DHS”) after he voluntarily
reported under a registration program applicable to Bangladeshi
residents. Through counsel, Parvez conceded removability, but 1

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70526 (Nov. 22, 2002). Initially, this list of countries did not
include Bangladesh. In January 2003, the Attorney General added
Bangladesh to the NSEERS program. As a result, men from Bangladesh
who entered the United States during a certain time frame were
required to register with the INS. 68 Fed. Reg. 2363 (Jan. 16,
2003).
In considering what constitutes “exceptional and extremely 2
undue hardship,” the relevant inquiry here is the experience of
Parvez’s son should Parvez be removed rather than the experience of
Parvez himself. Section 240A(b), codified at 8 U.S.C. § 1229b(b),
provides for cancellation of removal if the alien has been
physically present in the United States for a continuous period of
not less than ten years, has been a person of good moral character,
has not been convicted of various statutory offenses, and
“establishes that removal would result in exceptional and extremely
unusual hardship to the alien’s spouse, parent, or child, who is a
citizen of the United States or an alien lawfully admitted for
permanent residence.”
The IJ found: "Certainly, Bangladesh is a violent country 3
plagued by cyclones and floods, and politically motivated violence
since the 2001 election, but the respondent has significant family
ties in that country who do not appear to have ever suffered any
deprivation from any of these conditions."
-3-
sought cancellation of removal under § 240A(b) of the Immigration
and Nationality Act on the ground that removal would constitute an
extremely unusual hardship for his young son. In an oral ruling 2
after a hearing, the Immigration Judge (“IJ”) determined that
Parvez’s removal would not expose his son to exceptional and
extremely unusual harm, denied his application for relief, and
granted him voluntary departure. The IJ based her decision in part
on evidence that Parvez had family, including his politically
influential uncle, in Bangladesh, and a finding that there was no
evidence that Parvez’s family members had suffered persecution.3

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Parvez filed a timely notice of appeal with the BIA,
which affirmed the IJ’s decision and extended Parvez’s period of
voluntary departure to March 11, 2006. On March 9, 2006, Parvez
filed a motion to reopen with the BIA on the grounds that he had
new evidence regarding his uncle's death, the hardship his son
would experience if Parvez were removed, changed country conditions
in Bangladesh, and additional familial changes. On these grounds,
he argued, he should be permitted to file with the IJ an
application for asylum and withholding of removal, and his request
for cancellation of removal should be reconsidered. Parvez also
moved for a stay of voluntary departure.
The evidence Parvez asked the BIA to consider included
proof that his uncle had passed away in December 2004, that his
mother had been forcibly retired (on account of age), that his
sister’s family had left Bangladesh, that his son had become even
more acclimated to life in the United States (including forgetting
how to speak Bengali), and that conditions in Bangladesh had
changed so as to make it dangerous for westernized, non-practicing
Muslims such as Parvez and his family. On April 28, 2006, the BIA
denied Parvez’s motion to reopen, concluding that Parvez had
produced no new information regarding his uncle's death or his
son's circumstances. Moreover, the BIA found that Parvez had
failed to demonstrate that he would likely suffer persecution if he
were to return to Bangladesh.

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We review the BIA’s legal interpretations de novo, with 4
appropriate deference to the BIA’s interpretation of the underlying
statute in accordance with the principles of administrative law.
See Molina De Massenet v. Gonzales, 485 F.3d 661, 663 (1st Cir.
2007).
-5-
This petition for review followed. In it, Parvez claims
that the BIA abused its discretion by refusing to reopen
proceedings to allow him to renew his request for cancellation of
removal and to apply for asylum and withholding of removal. He
further claims that the BIA erred by failing to address his motion
to stay voluntary departure.
II.
We have consistently held that "[m]otions to reopen
removal proceedings are disfavored as contrary to 'the compelling
public interests in finality and the expeditious processing of
proceedings.'” Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.
2007)(quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.
2005)). Accordingly, the denial of a motion to reopen is reviewed
solely for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323 4
(1992) (holding that a denial of a motion to reopen is reviewed for
abuse of discretion regardless of the underlying basis of the
alien's request to reopen); Molina De Massenet v. Gonzales, 485
F.3d 661, 663 (1st Cir. 2007); Raza, 484 F.3d at 127. A decision
will be upheld “unless the complaining party can show that the BIA
committed an error of law or exercised its judgment in an
arbitrary, capricious, or irrational way.” Raza, 484 F.3d at 127.

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A motion to reopen the BIA’s proceedings must be based
upon (1) new material evidence that was not available and which an
alien could not have presented at the prior hearing and (2) a
showing of a “prima facie case for the underlying substantive
relief sought.” Olujoke v. Gonzales, 411 F.3d 16, 23 (1st Cir.
2005); see also 8 C.F.R. § 1003.2(c).
A. Cancellation of Removal
When the BIA denies cancellation of removal based on the
factual determination that an alien fails to demonstrate the
requisite hardship, we lack jurisdiction to review its decision.
8 U.S.C. § 1252(a)(2)(B)(i)("[N]o court shall have jurisdiction to
review . . . any judgment regarding the granting of relief under
section 1229b [cancellation of removal]."). See Cruz-Camey v.
Gonzales, No. 06-2590, slip op. at 3, (1st Cir. Sept. 11, 2007);
Elysee v. Gonzales, 437 F.3d 221, 223 (1st Cir. 2006). Therefore,
we also lack jurisdiction to consider the BIA's denial of the
motion to reopen for consideration of cancellation of removal when
the BIA has decided there was not the requisite hardship. Kaweesa
v. Gonzalez, 450 F.3d 62, 67 (1st Cir. 2006); Mehilli v. Gonzales,
433 F.3d 86, 92-93 (1st Cir. 2005).
We do, however, have jurisdiction to review
constitutional claims or questions of law under 8 U.S.C. §

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The section states that no provision "which limits or 5
eliminates judicial review[] shall be construed as precluding
review of constitutional claims or questions of law raised upon
petition for review."
8 C.F.R. § 1003.2(c) states: "A motion to reopen proceedings 6
shall not be granted unless it appears to the Board that evidence
sought to be offered is material and was not available and could
not have been discovered or presented at the former hearing."
-7-
1252(a)(2)(D). Mehilli, 433 F. 3d at 93. Parvez attempts to 5
bring himself within this exception by asserting that the BIA made
a legal error and violated his right to due process by failing to
consider the supporting materials he provided pertaining to his
motion to reopen for cancellation of removal. This supporting
material primarily related to the death of his uncle, changes in
the circumstances of the other family members, and his son's
continued social and educational development.
1. New Evidence Regarding His Uncle's Death
We have jurisdiction to review Parvez's claim that the
BIA committed a legal error in determining that the death of
Parvez's uncle did not constitute new material evidence within the
meaning of 8 C.F.R. § 1003.2(c). Parvez argues that because his 6
uncle died in December 2004, two months after the IJ issued her
oral ruling, a finding that the evidence reporting his uncle's
death was not new evidence was in contravention of the regulation.
This argument fails to recognize that Parvez had an
opportunity to file a motion with the BIA prior to its ruling on

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BIA Practice Manual § 4.8(b) (2004)("The Board does not 7
consider new evidence on appeal. If new evidence is submitted,
that submission may be deemed a motion to remand proceedings to the
Immigration Judge for consideration of that evidence and treated
accordingly.").
In determining that the death of Parvez’s uncle was not 8
material new evidence, the BIA stated:
In this regard, we note that the respondent’s uncle died
in December 2004, which was more than 1 year prior to our
decision on the respondent’s appeal. The respondent has
not explained why he did not file a motion to reopen on
this basis during the pendency of his appeal.
-8-
his appeal, through which he could have presented the new evidence
about his uncle's death to the IJ after a remand by the BIA.7
However, Parvez did not submit evidence of his uncle's death to the
BIA until after the BIA rendered its decision on his appeal.
Therefore, the BIA was justified in its position that the death of
Parvez's uncle cannot constitute "new evidence sufficient to merit
reopening" because "the respondent has not explained why he did not
file a motion to reopen on this basis during the pendency of his
appeal."8
2. New Evidence Regarding Other Familial Changes
Parvez also argues that the BIA violated his due process
rights because "[t]he BIA appeared not to have considered any of
the supporting evidence filed with the motion," particularly
evidence pertaining to his sister's departure from Bangladesh, his
mother's forced retirement on account of age, and his son's success
in school. However, the BIA’s language adequately demonstrates
that the BIA considered the proffered evidence on these other

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familial changes and nonetheless decided against Parvez. The BIA
directly addressed his son's circumstances, noting that the son
would not experience "exceptional and extremely unusual hardship"
in part because he is "very young, and capable of adapting to life
in Bangladesh."
Here, Parvez's claim is a disguised challenge to fact
finding. See Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir. 2007)
(holding that constitutional claims raised under the §
1252(a)(2)(D) exception must be more than "a disguised challenge to
factual findings”). Thus, we have no jurisdiction to review the
BIA's denial of the motion to reopen the cancellation of removal on
the ground that the BIA did not adequately consider evidence
regarding his sister's, mother's, and son's changed circumstances.
B. Asylum Application
Parvez also argues that the BIA abused its discretion by
refusing to reopen proceedings to allow him to apply for asylum.
An alien in removal hearings may move at any time to apply for
asylum or withholding of deportation if the alien is able to
establish a prima facie entitlement to the substantive relief
sought, 8 C.F.R. § 1003.2(c)(1), and there are changed
circumstances arising in the country to which deportation has been
ordered, id. § 1003.2(c)(3)(ii).
Parvez asserts that he has "demonstrated a prima facie
case for asylum based upon his religious beliefs as a non-

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-10-
practicing Muslim who may be considered a heretic, his status as a
westernized Bangladeshi, and his political opinion as a relative of
the prominent part of the opposition Awami League." The BIA took
a different view. It noted that Bangladesh has been plagued by
politically motivated violence since the 2001 elections, yet
Parvez's sister and mother, whose religious and political positions
seem to be similar to Parvez's, "do not appear to have ever
suffered any deprivation from any of these conditions." Moreover,
the country condition information Parvez provided was "very general
in nature" and did not indicate that someone in a position similar
to Parvez's would experience persecution. In the BIA's view,
"respondent's broad allegations that he will suffer persecution
upon his return to Bangladesh amount to mere speculation." Given
this assessment of the deficiencies in Parvez's case for asylum,
the BIA did not abuse its discretion in denying his motion to
reopen proceedings for consideration of an asylum claim.
C. Withholding of Removal
Our conclusion that the BIA supportably found that Parvez
did not make a prima facie showing with respect to his asylum claim
necessarily dooms his claim with respect to the withholding of
removal. See Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st
Cir. 2005) (finding that the BIA's rejection of the petitioner's
asylum claim, if sustainable, "sounds the death knell for his
counterpart claim for withholding of removal"). Accordingly, we

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The government asserts that Parvez should have sought an 9
extension of his voluntary departure period from the Department of
Homeland Security. Naeem v. Gonzales, 469 F.3d 33, 38 n.3 (1st
Cir. 2006). Parvez filed his motion to stay voluntary departure
with the BIA on March 9, 2006, two days prior to the expiration of
his voluntary departure period. If the BIA had granted a stay
pending its ruling on the motion to reopen, Parvez would have been
required to depart on April 30,2007.
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conclude that the BIA did not abuse its discretion by denying the
motion to reopen proceedings so as to allow Parvez to apply for
such relief.
D. Failure to Rule on Motion to Stay Voluntary Departure
Parvez claims that the BIA denied him due process by
failing to rule on his motion to stay voluntary departure pending
its decision on his motion to reopen proceedings. Even if Parvez
could assert a due process claim based on the BIA's failure to rule
on his motion to stay voluntary departure (an issue on which we
take no position), such a claim would at least require a statutory
or regulatory obligation to rule on the motion. Parvez has not
established that the BIA had such an obligation.9
For the foregoing reasons, we deny the petition for
review.
So ordered.

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