Sarkar v. Garland

• Decision Date: 01 July 2022
• Docket Number: 17-72212
• Parties: Atm Magfoor Rahman SARKAR; Hasna Hena Rahman; Saiqa Rahman; Sahriar Rahman, Petitioners, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

39 F.4th 611

Atm Magfoor Rahman SARKAR; Hasna Hena Rahman; Saiqa Rahman; Sahriar Rahman, Petitioners,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 17-72212

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2022 Pasadena, California

Filed July 1, 2022

Ruben N. Sarkisian (argued), Glendale, California, for Petitioners.

Raya Jarawan (argued) and Colette J. Winston, Trial Attorneys; Jeffery R. Leist, Senior Litigation Counsel; Anthony C. Payne, Assistant Director; Brian M. Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Sandra S. Ikuta, Kenneth K. Lee, and Danielle J. Forrest, Circuit Judges.

FORREST, Circuit Judge:

Atm Magfoor Rahman Sarkar, his wife, and their two children petition for review of the Board of Immigration Appeals's (BIA) order denying their third motion to reopen removal proceedings.¹ Although this case has been pending for nearly five years, shortly before oral argument both Sarkar and the Government moved to administratively close this case because the Government has deemed Sarkar a low enforcement priority. On the merits, it is undisputed that Sarkar's third motion to reopen is untimely and numerically barred. Nonetheless, he argues that he is entitled to relief because he has presented new and material country-conditions evidence that establishes his prima facie eligibility for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny the parties' motions for administrative closure as well as Sarkar's petition for review.

I. BACKGROUND

Sarkar, a native and citizen of Bangladesh, entered the United States as a nonimmigrant visitor in 1991. After he overstayed his visitor authorization, the Government issued a Notice to Appear charging him as deportable under 8 U.S.C. § 1231(a)(1)(B). Sarkar admitted the allegations against him and conceded removability and applied for political asylum based on his participation in the Jatiya Party.

After failing to appear and being ordered removed in absentia in 1997, the immigration court granted a motion to reopen and held a hearing on Sarkar's claims. In 1998, an Immigration Judge (IJ) denied his application for asylum and ordered him removed to Bangladesh. The IJ found Sarkar's political persecution claims "unbelievable" and "at the minimum exaggerated if not fabricated." The IJ also noted that the evidence contradicted Sarkar's claims. The BIA affirmed the IJ's decision without opinion. Sarkar did not appeal.

About six months later, Sarkar moved to reopen with the BIA citing changed country conditions. The BIA denied the motion because it was untimely and failed to show any material change in the conditions in Bangladesh. We denied Sarkar's petition for review concluding that the BIA did not abuse its discretion. See Sarkar v. Gonzales , 114 F. App'x 959 (9th Cir. 2004) (unpublished). Several years later, Sarkar filed a second motion to reopen alleging ineffective assistance of counsel. The BIA denied this second motion to reopen, and we again denied Sarkar's petition for review. See Sarkar v. Holder , 444 F. App'x 207 (9th Cir. 2011) (unpublished). We held that the BIA did not abuse its discretion because Sarkar presented insufficient evidence to show that he was prejudiced by his former counsel's actions. Id. at 208.

In 2017, Sarkar filed a third motion to reopen, which is the subject of this petition. In this motion, he argued that changed circumstances in Bangladesh "put him directly at risk of serious injury or death due to his opposition to Islamic Extremists, as well as the Bangladeshi political parties catering to the religious extremists." Sarkar attached four exhibits to his motion. The first exhibit is his own declaration, in which he stated that "recent developments in my country of Bangladesh have escalated the terrible conditions to a new level, creating changed conditions which place me in fear of returning to my country."

Sarkar described his upbringing and the shift in Bangladeshi politics, which "propelled" him to join the Jatiya Party and go into hiding for several years. He contended that "[w]hile Islamic extremists have always existed in Bangladesh, ... [he] ha[s] begun to witness from afar, slow but steady capitulations by the government to extremists." He pointed to "seemingly small," but dangerous, government actions, such as "weakening our landmark legislation against underage marriage." While in the United States, Sarkar declares that he has "become known in the Bangladeshi expatriate community as a fierce opponent of religious extremism," evidenced by his "heated arguments" at his local mosque. Thus, he concludes that he remains safe only because he resides in the United States, and he fears not having police protection if returned to Bangladesh.

The second exhibit is an online article titled "Bangladesh Weakens Longstanding Law Against Underage Marriage." This article highlights the government's change to a "landmark law against underage marriage," allowing "girls under the age of 18 to marry in some circumstances." According to this article, the change was supported by powerful Islamist organizations.

The third exhibit is also an online article acknowledging "the removal of 17 poems and stories" in educational textbooks. This removal—"barely noticeable to the general public"—reportedly stemmed from demands made by a group of Islamic religious scholars. The article contends that the removal "goes far beyond textbooks" and reflects a larger change in the government's acquiescence to extreme Islamic groups.

The final exhibit, titled "The Rise of Islamic Extremism in Bangladesh," points to violent attacks on those who "rais[e] their voices against extremist ideology." It highlights an "attack on innocent civilians in an upscale bakery" killing 22 people, "mainly foreigners." This attack allegedly stemmed from a shift in Bangladesh politics. Although there are indications that newer attacks were carried out by ISIS, the government "refuses to accept that ISIS has infiltrated the country, instead blaming local groups."

The BIA denied Sarkar's third motion to reopen as "both untimely and number-barred." The BIA held that the evidence submitted did not establish an exception to the time and numerical limitations for motions to reopen. It also noted that the "limited background evidence of Islamist militant violence in Bangladesh, which has been directed at various groups of individuals, including foreigners, does not prima facie demonstrate that [Sarkar's family] face[s] an individualized risk of persecution or that they would be subject to a pattern or practice of persecution." Rather, the BIA concluded that Sarkar and his family face the same risks as the general population. As to the CAT claim, the BIA found that Sarkar's changed-circumstances evidence did not demonstrate that it was more likely than not that he would face torture with the consent or acquiescence of the Bangladesh government.

Sarkar timely appealed and filed a motion for a stay of removal. Soon after, he filed a supplemental motion to stay removal, which the Government opposed. We granted Sarkar's supplemental motion for a stay pending this appeal. The case was still pending almost four years later, and we directed the parties "to file a request for appropriate relief or notify the court that they wish to proceed to decision." The parties agreed to proceed, and the Government noted that this "case does not merit alternative resolution." But shortly before oral argument, both the Government and Sarkar filed unopposed motions to administratively close this case. The Government gave as its reasons for indefinitely postponing a decision on Sarkar's petition that Sarkar and his family "are not an immigration enforcement priority" and "administrative closure would not adversely affect the interests of the parties." The Government further explained at oral argument that it waited so long to pursue this relief because the United States Immigration and Customs Enforcement (ICE) had only recently made it aware that Sarkar is not an enforcement priority. Sarkar relied on the Government's reasons in his motion for administrative closure.

II. DISCUSSION

A. Administrative Closure

Federal courts have inherent power "to control the disposition of the causes on [their] docket[s] with economy of time and effort for [themselves], for counsel, and for litigants." Landis v. N. Am. Co. , 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). Courts have exercised this authority in several ways, such as staying proceedings and dismissing a case for failure to prosecute. See Dietz v. Bouldin , 579 U.S. 40, 47, 136 S.Ct. 1885, 195 L.Ed.2d 161 (2016) (collecting cases). When considering a request to stay an appeal, we have explained that "competing interests" must be weighed. CMAX, Inc. v. Hall , 300 F.2d 265, 268 (9th Cir. 1962). Those interests include: "the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay." Id.

Courts also have used their inherent power to manage their docket to administratively close cases, which is "the practical equivalent of a stay." Quinn v. CGR , 828 F.2d 1463, 1465 n.2 (10th Cir. 1987) ; see also Ali v. Quarterman , 607 F.3d 1046, 1049 (5th Cir. 2010). Administrative closure allows a court to "shelve pending, but dormant, cases" without a final adjudication. Lehman v. Revolution Portfolio LLC , 166 F.3d 389, 392 (1st Cir. 1999). Although an administratively closed case is not counted as active, it "still exists on the docket" and "may be reopened upon request of the...