    17-1228
    Akhtar v. Whitaker
                                                                                   BIA
                                                                           A098 929 525


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 20th day of December, two thousand
    eighteen.

    PRESENT:
             JON O. NEWMAN,
             REENA RAGGI,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    ARFAN AKHTAR,
             Petitioner,

                         v.                                      17-1228
                                                                 NAC
    MATTHEW G. WHITAKER, ACTING
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                        Amy N. Gell, Gell & Gell, New
                                           York, NY.

    FOR RESPONDENT:                        Chad A. Readler, Principal
                                           Deputy Assistant Attorney
                                           General; Paul Fiorino, Senior
                                           Litigation Counsel; Erik R.
                                  Quick, Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, DC.

      UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

      Petitioner   Arfan    Akhtar,    a   native   and   citizen   of

Pakistan, seeks review of a March 27, 2017, decision of the

BIA   denying   his    untimely   motion   to   reopen    his   removal

proceedings.    In re Arfan Akhtar, No. A098 929 525 (B.I.A.

Mar. 27, 2017).       We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

      We review the denial of a motion to reopen for abuse of

discretion and related country conditions findings for

substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d

138, 168-69 (2d Cir. 2008). An alien may move to reopen

removal proceedings no later than 90 days after the final

administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i);

8 C.F.R. § 1003.2(c)(2). There is no dispute that Akhtar’s

2016 motion was untimely because his removal order became

final in 2014. 8 U.S.C. § 1101(a)(47)(B). But the time

limitation does not apply to a motion to reopen if it is

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filed to apply for asylum “based on changed country

conditions arising in the country of nationality . . . if

such evidence is material and was not available and would

not have been discovered or presented at the previous

hearing.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

§ 1003.2(c)(3)(ii). Even where there has been a material

change in country conditions, the BIA may nevertheless deny

reopening where a movant fails to demonstrate prima facie

eligibility for relief from removal. See INS v. Abudu, 485

U.S. 94, 104-05 (1988). To demonstrate prima facie

eligibility for relief from removal, a movant “must show a

‘realistic chance’ that []he will be able to obtain such

relief.” Jian Hui Shao, 546 F.3d at 168. For the reasons

that follow, we conclude that the BIA did not abuse its

discretion in denying reopening.

    The BIA did not err in denying reopening on the ground

that Akhtar failed to demonstrate that the harm he feared

was on account of a protected ground as required for asylum

and withholding of removal.   Id.; 8 U.S.C.

§§ 1158(b)(1)(B)(i), 1231(b)(3)(A). To establish

eligibility for asylum and withholding of removal in the

absence of past persecution, an applicant must demonstrate


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a well-founded fear or likelihood of future persecution on

account of “race, religion, nationality, membership in a

particular social group, or political opinion.” Rodas

Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010) (quoting

8 U.S.C. § 1158(b)(1)(B)(i)).

    First, Akhtar does not challenge the BIA’s

determination that he failed to submit evidence that

Pakistanis who have lived in the United States constitute a

cognizable particular social group. He has therefore failed

to demonstrate error in the BIA’s determination that he did

not establish his prima facie eligibility for asylum or

withholding of removal based on that alleged protected

ground. See Paloka v. Holder, 762 F.3d 191, 196 (2d Cir.

2014) (observing that a particular social group must be

legally cognizable); Norton v. Sam’s Club, 145 F.3d 114,

117 (2d Cir. 1998) (“Issues not sufficiently argued in the

briefs are considered waived and normally will not be

addressed on appeal.”).

    Second, the BIA reasonably concluded that the harm

Akhtar feared from his brother was due to a personal

vendetta and was not because of Akhtar’s political opinion.

See Matter of N–M–, 25 I. & N. Dec. 526, 531-32 (B.I.A.


                                4
2011) (suggesting that where the alleged persecutor acts

“solely out of personal revenge or a desire to avoid the

exposure of a lucrative scheme of corruption, without a

significant concern about the alien’s political beliefs,

perceived or otherwise,” the claim cannot satisfy

the nexus requirement). Akhtar did not assert that he

cooperated against, or was threatened by, his brother

because he opposed corruption or held any political

opinion. Indeed, Akhtar participated in the fraud with his

brother. The BIA therefore reasonably concluded that Akhtar

failed to demonstrate his prima facie eligibility for

asylum or withholding of removal based on his political

opinion. Id.; Jian Hui Shao, 546 F.3d at 168.

    Nor did the BIA err in determining that Akhtar failed

to demonstrate his prima facie eligibility for CAT relief

based on his fear of harm from his brother. Jian Hui Shao,

546 F.3d at 168. The BIA also reasonably declined to credit

Akhtar’s father’s letter—the only independent evidence that

Akhtar’s brother had threatened Akhtar—because it was

authored by an interested witness unavailable for cross

examination. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d

Cir. 2013) (deferring to agency’s determination that


                             5
spouse’s letter was entitled to “very little evidentiary

weight” “because it was unsworn and because it was

submitted by an interested witness”). The BIA did not err

in finding that the harassment complaint and Pretrial

Services memorandum did not establish a likelihood of

torture because they were based on threats Akhtar’s brother

made to Akhtar’s nephew rather than Akhtar. Id. at 332.

Moreover, the BIA did not err by declining to credit

Akhtar’s own assertions concerning his brother’s threats in

light of the underlying adverse credibility determination.

Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146 (2d Cir.

2007); see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d

Cir. 2007) (“So a single false document or a single

instance of false testimony may (if attributable to the

petitioner) infect the balance of the alien’s

uncorroborated or unauthenticated evidence.”). Because the

BIA reasonably accorded minimal weight to the only evidence

of threats, it did not err in concluding that Akhtar failed

to demonstrate his prima facie eligibility for CAT relief.

See In re M–B–A–, 23 I. & N. Dec. at 479-80; Jian Hui Shao,

546 F.3d at 168.




                             6
    Because the BIA did not abuse its discretion in denying

reopening based on Akhtar’s failure to establish his prima

facie eligibility for relief, we do not reach the BIA’s

alternative conclusion that Akhtar failed to demonstrate a

material change in country conditions. See INS v. Bagamasbad,

429 U.S. 24, 25 (1976) (“As a general rule courts and agencies

are not required to make findings on issues the decision of

which is unnecessary to the results they reach.”).

    For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot.   Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                        FOR THE COURT:
                        Catherine O’Hagan Wolfe
                        Clerk of Court




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