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Shah v. Holder

United States Court of Appeals, First Circuit

July 2, 2014

ALI SHAH, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

Stephanie F. Dyson and Cayer Dyson Law, P.C. on brief for petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, and Song E. Park, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, on brief for respondent.

Before Lynch, Chief Judge, Thompson and Kayatta, Circuit Judges.

OPINION

Page 33

LYNCH, Chief Judge.

This case is a good example for why arguments should be made to the Immigration Judge (" IJ" ) and the Board of Immigration Appeals (" BIA" ) in the first instance, and why the arguments actually made should be clear. Ali Shah, a citizen

Page 34

and native of Pakistan, petitions for review of a June 20, 2013 order of the BIA denying his motion to reopen removal proceedings. He argues that the BIA did not properly address either of his arguments going to earlier adverse credibility findings. He makes to us a series of arguments in support of reopening that were never presented to the BIA. The BIA did not abuse its discretion in denying Shah's motion to reopen and we do not have jurisdiction to consider freshly minted arguments not presented to the agency, so we both dismiss portions of his petition for lack of jurisdiction and we deny his petition for review as to other claims.

I.

Shah entered the country in 2002. We give only a brief summary of Shah's removal proceedings, which have lasted for well over ten years. He has had the benefit of two de novo hearings before two different IJs, and his appeals have been considered by the BIA on multiple occasions and petitions for review to the Third Circuit. Shah's motion for a change of venue was granted and this matter was transferred from Philadelphia to Boston in 2009. We focus on proceedings that followed the change of venue.

A. Background

Shah entered the United States without inspection at or near Lake Charles, Louisiana around July 15, 2002. After receiving a Notice to Appear around July 19 charging him with removability for being present in the United States without being admitted or paroled, 8 U.S.C. § 1182(a)(6)(A)(i), Shah conceded removability and filed for asylum, withholding of removal, and protection under the Convention Against Torture. Specifically, he alleged that he was persecuted in Pakistan because of his membership in the Nawaz Group of the Pakistani Muslim League (" PML" ). Shah joined the PML in 1996, when he was about sixteen years old, and held the position of propaganda officer for his village. He alleged that he was arrested in October 1996 as a result of his actions on behalf of the PML, and that he was detained, beaten daily, and told that if he did not cease his activities on behalf of the PML he would be killed.

We skip to the 2011, post-transfer hearing. The hearing was unsuccessful for him, and the result was affirmed by the BIA. That led to the denial of the ...


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