Salim Ahmed v. John Ashcroft, Attorney General of the United States

* Daniel M. Friedman, United States Senior Circuit Judge for the Federal Circuit, sitting by designation.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
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03-1068
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SALIM AHMED,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
___________
Petition for Review
Of the Board of Immigration Appeals
(A 73-165-094)
___________
Submitted Under Third Circuit LAR 34.1(a) (1993)
December 2, 2003
Before: SLOVITER, ALITO and FRIEDMAN,* Circuit Judges
(Filed March 1, 2004)
OPINION OF THE COURT
FRIEDMAN, Circuit Judge.
In this case we review the Board of Immigration Appeals (Board)’s refusal to
reopen and reconsider its prior decision that dismissed an appeal by a deportable alien
from an immigration judge’s denial of asylum and related relief. We deny the petition for
review.

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I
The petitioner Salim Ahmed, a Bangladeshi citizen, entered the United States
legally on a six month visitor’s permit. He overstayed his visit by more than a year, and
the Immigration and Naturalization Service instituted deportation proceedings against
him. He admitted deportability, but sought asylum and withholding of deportation based
on fear of persecution if returned to Bangladesh.
At the hearing before the immigration judge, Ahmed testified that he was a
member of the Jatiya party, which opposed the Bangladesh National Party. In 1992 the
National Party was in control of the government. Ahmed stated that in August 1992 he
was arrested and imprisoned for ten days, during which he was kept in a small room
and mentally tortured. Upon his release, he resumed his old job as a secretary to a
member of parliament and returned to his old neighborhood of residence. He remained
in Bangladesh for more than a year, until he left to visit the United States. While so
visiting the United States, he obtained a Bangladesh passport.
In an oral opinion, the immigration judge denied asylum and withholding of
deportation, but granted voluntary departure. He found that Ahmed had not shown prior
persecution (which was based on his ten-day imprisonment) or fear of future
prosecution. The immigration judge further found that the political situation in
Bangladesh had changed, since the National Party no longer had complete control of
the government, but shared power with the Jatiya party, members of which were now
part of the government.
Ahmed appealed to the Board. More than three-and-a-half years later the Board,
in a short order by a single member, dismissed the appeal. It ruled that “the

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Immigration Judge was correct in concluding that the respondent had not met his
burden of proof to be eligible for the relief of asylum and withholding of deportation . . .
[,] [t]he treatment he suffered during his 10-day detention does not rise to the level of
persecution . . . [, and] [m]oreover, his fears of future persecution are not reasonable.”
As the Immigration Judge noted, “since the respondent’s detention in 1992, the
[National Party] has lost power and the respondent’s own political party, the Jatiya
Party, shares power with the Awami League.”
Under the governing statute, Ahmed was required to file any appeal to this court
from the Board’s decision within thirty days. 8 U.S.C. § 1252(b)(1) (2000). Ahmed did
not so file. Instead, approximately three months after the Board’s decision, he filed with
the Board a motion to reopen and reconsider, which the Board denied in an order of
December 9, 2002. The Board denied reconsideration because the request was not
timely, since it was not filed within thirty days, as the regulations required. See 8 C.F.R.
§ 3.2(b)(2) (2002). The Board denied reopening because Ahmed “has failed to satisfy
the heavy evidentiary burden relevant to reopening.” It stated:
In the present motion, the respondent largely attempts to
reiterate arguments already made in the context of his
appeal and already evaluated by this Board. A motion to
reopen is not a substitute for an appeal. It is not to be used
as an opportunity for a second effort at proving factual
allegations.
II
Although Ahmed attempts to argue the merits of his claim for asylum, his appeal
is from the Board’s order of December 9, 2002, denying reopening and reconsideration.
The only question properly before us is the validity of that order.

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The Board correctly denied reconsideration because Ahmed’s request therefor
was untimely, since filed approximately two months after the thirty-day period for filing
had expired. The Board did not abuse its discretion in so acting.
The Board also did not abuse its discretion in refusing to reopen the proceedings.
Ahmed sought reopening on the basis of a State Department report that the National
Party had regained control of the government in Bangladesh. That changed
circumstance did not aid him, because in the original decision, which the Board
previously had upheld, the immigration judge had found that Ahmed had not shown a
reasonable fear of persecution in Bangladesh at a time the National Party was in power.
The petition for review is denied.

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