Ferdilus v. Holder ( 2010 )

09-0773-ag
Ferdilus v. Holder
BIA
A079 497 978
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 26 th day of January, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROBERT A. KATZMANN,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _______________________________________
12
13 ALONVY FERDILUS,
14 Petitioner,
15
16 v. 09-0773-ag
17 NAC
18
19 ERIC H. HOLDER, Jr., U.S. ATTORNEY
20 GENERAL,
21 Respondent. 1
22 _______________________________________
23
1
The Clerk of the Court is directed to amend the
official caption as set forth above.
1 FOR PETITIONER: Melinda M. Basaran, Paterson, New
2 Jersey
3
4 FOR RESPONDENT: Tony West, Assistant Attorney
5 General, Barry J. Pettinato,
6 Assistant Director, John D.
7 Williams, Trial Attorney, Office of
8 Immigration Litigation, Civil
9 Division, United States Department
10 of Justice, Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 decision of the Board of Immigration Appeals (“BIA”), it is
14 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
15 review is DENIED.
16 Petitioner Alonvy Ferdilus, a native and citizen of
17 Haiti, seeks review of a January 30, 2009 order of the BIA
18 denying his motion to reopen his removal proceedings. In re
19 Alonvy Ferdilus, No. A079 497 978 (B.I.A. Jan. 30, 2009).
20 We assume the parties’ familiarity with the underlying facts
21 and procedural history of the case.
22 We review the BIA’s denial of a motion to reopen for
23 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
24 (2d Cir. 2006). An alien who has been ordered removed may
25 file one motion to reopen, but must do so within 90 days of
26 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
27 The 90-day filing deadline may be equitably tolled if the
2
1 alien can establish “changed country conditions arising in
2 the country of nationality . . . if such evidence is
3 material and was not available and would not have been
4 discovered or presented at the previous proceeding.”
5 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
6 Here, Ferdilus’ motion to reopen was unquestionably untimely
7 because he filed it more than three years after his June
8 2005 final order of removal. Thus, Ferdilus was required to
9 present previously unavailable, material evidence of changed
10 conditions in Haiti in order to avoid the time bar.
11 Ferdilus argues that the BIA abused its discretion by
12 failing to properly consider the evidence he submitted in
13 support of his motion to reopen. However, the BIA is not
14 required to “expressly parse or refute on the record each
15 individual argument or piece of evidence offered by the
16 petitioner” as long as it “has given reasoned consideration
17 to the petition, and made adequate findings.” Wei Guang
18 Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)(internal
19 quotation marks omitted). A review of the record reveals
20 that the BIA reasonably considered the record evidence. See
21 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337
22 n.17 (2d Cir. 2006).
3
1 Furthermore, there is no merit to Ferdilus’ assertion
2 that changed country conditions in Haiti would result in him
3 being persecuted on account of his membership in a
4 “particular social group” – specifically, “Haitians
5 returning to the country after a long stay in the United
6 States . . . .” See 8 C.F.R. § 1003.2(c)(3)(ii). Putting
7 aside the question of whether that group is sufficiently
8 cognizable, see Koudriachova v. Gonzales, 490 F.3d 255, 261-
9 62 (2d Cir. 2007), the BIA reasonably found that the
10 evidence did not support a finding that Haitians returning
11 from the United States are targeted for crime and kidnaping,
12 or that any harm that might come to such individuals would
13 be different in kind than that faced by all citizens living
14 in a country wracked by violence and instability. See
15 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007).
16 Accordingly, the BIA did not abuse its discretion in denying
17 Ferdilus’ untimely motion to reopen his removal proceedings
18 because he failed to establish a material change in
19 conditions in Haiti that would constitute an exception to
20 the time limitation for filing motions to reopen.
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
4
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34(b).
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
12
13
5