Saini v. Holder , 444 F. App'x 491 ( 2011 )

10-469-ag
Saini v. Holder
BIA
A071 498 882
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of November, two thousand eleven.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
DENNY CHIN,
Circuit Judges.
_____________________________________
MOHINDER SAINI,
Petitioner,
v. 10-469-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Mohinder Saini, pro se, Norwalk, CT.
FOR RESPONDENT: Tony West, Assistant Attorney
General; M. Jocelyn Lopez Wright,
Senior Litigation Counsel; Jessica
Segall, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Mohinder Saini, a native and citizen of India, seeks
review of a January 13, 2010, decision of the BIA denying
his motion to reopen. In re Saini, No. A071 498 882 (B.I.A.
Jan. 13, 2010). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). Where the BIA considers relevant evidence of
country conditions in evaluating a motion to reopen, we
review the BIA’s factual findings under the substantial
evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 169 (2d Cir. 2008).
It is undisputed that Saini’s motion to reopen was
untimely and number-barred because it was his third such
motion and it was filed nearly six years after the agency
issued its final order of removal. See 8 U.S.C.
§ 1229a(c)(7)(C)(I); 8 C.F.R.§ 1003.2(c)(2). The time and
number limitations, however, do not apply to a motion to
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reopen that is “based on changed circumstances arising in
the country of nationality or in the country to which
deportation has been ordered, if such evidence is material
and was not available and could not have been discovered or
presented at the previous hearing.”
8 C.F.R. § 1003.2(c)(3)(ii); 8 U.S.C. § 1229a(c)(7)(C)(ii).
Saini argues that the BIA abused its discretion by finding
that he did not establish changed country conditions.
Saini’s arguments are unavailing. Saini’s previous
testimony regarding his persecution as a Akali Dal Mann
member was found not credible. The BIA reasonably declined
to credit Saini’s account of the purported police raids of
his family’s home. See Kaur v. BIA, 413 F.3d 232, 234 (2d
Cir. 2005) (per curiam) (petitioner’s evidence was not
material because it did not rebut a prior adverse
credibility determination). Similarly, the BIA did not
abuse its discretion in declining to credit the purported
affidavits from the village leader and Saini’s brother and
Saini’s father’s death certificate because these documents
were not authenticated. See Qin Wen Zheng v. Gonzales, 500
F.3d 143, 148 (2d Cir. 2007) (BIA did not abuse its
discretion in declining to credit unauthenticated documents
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submitted with a motion to reopen where the alien had been
found not credible in the underlying proceedings); see also
Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[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.”).
Moreover, substantial evidence supports the BIA’s
determination that Saini failed to establish that conditions
in India had materially changed. Saini’s background
evidence does not mention the Akali Dal Mann; therefore, the
BIA reasonably found that Saini did not establish any
material change for Sikhs involved with that group. Further,
while Saini presented evidence of Sikh mistreatment, the
record indicates such violence occurring prior to the IJ
decision in 2002, and does not demonstrate an increase in
violence thereafter. Thus, the BIA did not abuse its
discretion in finding that Saini failed to establish a
material change in conditions in India. See Siewe, 480 F.3d
at 167 (“Where there are two permissible views of the
evidence, the fact finder’s choice between them cannot be
clearly erroneous.” (quoting Andersen v. Bessemer City, 470
4
U.S. 564, 574 (1985))). Accordingly, the BIA did not abuse
its discretion in denying Saini’s third motion to reopen.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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