Naseem Abbas v. Merrick B. Garland, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Naseem Abbas,
Petitioner,
v.
Merrick B. Garland, U.S. Attorney
General,
Respondent.
No. 21-770
Agency No. A208-613-536
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 27, 2023**
San Francisco, California
Before: BOGGS, *** M. SMITH, and OWENS, Circuit Judges.
Naseem Abbas, a native and citizen of Pakistan, petitions for review of
the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of the
Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”) and
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
MAR 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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denial of his motion to remand. As the parties are familiar with the facts, we do
not recount them here. We have jurisdiction under 8 U.S.C. § 1252 and deny
the petition for review.
Where, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872
(BIA 1994), and provides its own review of the evidence and law, “we review
both the IJ’s and the BIA’s decisions.” Ruiz-Colmenares v. Garland, 25 F.4th
742, 748 (9th Cir. 2022) (citation omitted). We review the agency’s factual
findings underlying the denials of asylum, withholding of removal, and CAT
protection for substantial evidence. Plancarte Sauceda v. Garland, 23 F.4th
824, 831 (9th Cir. 2022). Under this standard, we must uphold the agency’s
rulings unless the evidence “compels the conclusion that these findings and
decisions are erroneous.” Id. (citation omitted). We review the BIA’s denial of
a motion to remand for abuse of discretion. Movsisian v. Ashcroft, 395 F.3d
1095, 1098 (9th Cir. 2005). We review claims of due process violations de
novo. Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000) (citation
omitted).
1. To qualify for asylum and withholding of removal, a petitioner
must show persecution or a fear of persecution “by the government, or by forces
that the government was unable or unwilling to control.” Hussain v. Rosen, 985
F.3d 634, 645 (9th Cir. 2021) (citation omitted). Here, substantial evidence
supports the BIA’s determination that Abbas failed to show that the Pakistani
government is “unable and unwilling to control the type of sectarian violence

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that he experienced.” The State Department’s 2018 Human Rights Report for
Pakistan (the “2018 report”), which Abbas provided in support of his asylum
application, indicates that the Pakistani government arrests individuals for
religious discrimination and conducts operations to eradicate militant safe
havens. See id. at 648 (finding that similar government conduct did not compel
the conclusion that the Pakistani government was unable or unwilling to control
the Taliban).
Abbas also testified that he reported to the police the harm he experienced
while driving through a Sunni-majority area as a bus driver. While the
Pakistani government “often fail[s] to protect the rights of religious minorities,”
Abbas received confirmation of his police report and a government clerk letter
threatening legal action against the “leaders” of the Sunni-majority area if they
failed to stop future attacks. See Truong v. Holder, 613 F.3d 938, 941 (9th Cir.
2010) (per curiam) (holding that substantial evidence supported the agency’s
conclusion that the government was not unable or unwilling, in part, because the
petitioners “sought assistance from the Italian police, who dutifully made
reports after each incident and indicated that they would investigate,” despite
their failure to locate the unknown assailants). Because the record does not
compel the conclusion that the Pakistani government was unable or unwilling to
control sectarian violence, we deny the petition as to asylum and withholding of
removal.
2. Abbas does not challenge the agency’s denial of CAT relief in his

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opening brief and therefore waives any objection to the BIA’s denial of CAT
protection. See Cui v. Holder, 712 F.3d 1332, 1338 n.3 (9th Cir. 2013).
Accordingly, we deny the petition as to the CAT claim.
3. The BIA did not abuse its discretion by denying Abbas’s motion to
remand, which was based on the 2020 version of the State Department’s Human
Rights Report (the “2020 report”) and various news articles post-dating his IJ
hearing. A motion to remand “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.” 8 C.F.R.
§ 1003.2(c)(1); see also Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1987)
(“The formal requirements of the motion to reopen and those of the motion to
remand are for all practical purposes the same.”). Noncitizens seeking remand
“bear a heavy burden of proving that, if proceedings were reopened, the new
evidence would likely change the result in the case.” See Shin v. Mukasey, 547
F.3d 1019, 1025 (9th Cir. 2008) (internal quotation marks and citation omitted).
Here, the BIA acted within its discretion by determining that Abbas failed
to show that the proffered evidence was likely to change the outcome of the
case. As the BIA noted, Abbas failed to mention how the 2020 report supported
a remand. And although the articles suggest an increase in violence against
Shia Muslims in Pakistan, they also note that the sectarian resurgence began in
2017 and the country’s recent blasphemy law originated in the 1980s—meaning
this evidence could have been presented in his previous hearing. Accordingly,

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the BIA did not abuse its discretion.
4. Finally, the BIA did not violate Abbas’s due process rights by
failing to review the full record.1 Although the BIA can violate a petitioner’s
due process rights if it fails to consider relevant evidence, the petitioner “must
overcome the presumption that [the agency] did review the evidence.” Larita-
Martinez, 220 F.3d at 1096. Aside from arguing that consideration of the whole
record would have resulted in a different outcome, Abbas fails to point to
anything specific in the record to overcome this presumption. See Aguilar-
Osorio v. Garland, 991 F.3d 997, 999 (9th Cir. 2021) (per curiam) (finding no
due process violation because “nothing in the record [] indicate[d] that there
was relevant evidence that the BIA failed to consider”). Because Abbas did not
show error, he cannot prevail on his due process challenge. See Larita-
Martinez, 220 F.3d at 1095 (requiring error and substantial prejudice for a due
process challenge).
PETITION DENIED.
1 To the extent that Abbas argues that the IJ also violated his due process rights
by failing to review the full record, the panel does not have jurisdiction to
review this claim because Abbas failed to raise this issue before the BIA. See
Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020).

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