Alam v. Holder , 357 F. App'x 353 ( 2009 )

08-5380-ag
Alam v. Holder
BIA
A072 375 850
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 18 th day of December, two thousand nine.
PRESENT:
JON O. NEWMAN,
RALPH K. WINTER,
REENA RAGGI,
Circuit Judges.
_________________________________________
ABDUL LATIF ALAM,
Petitioner,
v. 08-5380-ag
NAC
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES, 1
Respondent.
_________________________________________
FOR PETITIONER: Richard W. Chen, New York, New York.
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Eric H. Holder, Jr., is automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Emily Anne Radford, Assistant Direc-
tor; Jesse L. Busen, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
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 Abdul Latif Alam, a native and citizen of
Pakistan, seeks review of the October 8, 2008 order of the BIA
denying his motion to reopen. In re Abdul Latif Alam, No.
A072 375 850 (B.I.A. Oct. 8, 2008). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion, mindful of the Supreme Court’s admonition
that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d
515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314,
322-23 (1992)). Here, the BIA did not abuse its discretion by
denying Alam’s motion to reopen as untimely. An alien seeking
to reopen proceedings must file his motion to reopen no later
than 90 days after the date on which the final administrative
decision was rendered. See 8 C.F.R. § 1003.2(c)(2). There is
no dispute that Alam’s May 2008 motion was untimely because
the BIA issued a final order of removal in December 2002.
Moreover, the BIA properly found that Alam’s motion did not
qualify for an exception to the time limitation based on his
assertion of changed country conditions in Pakistan. See 8
C.F.R. § 1003.2(c)(3)(ii).
The BIA did not abuse its discretion in denying Alam’s
motion to reopen based on his failure in the reopening motion
to rebut the Immigration Judge’s adverse credibility
2
determination in the original removal decision. See Kaur v.
2
We are without jurisdiction to consider Alam’s challenge to that original
determination itself. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83 (2d
Cir. 2001).
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BIA, 413 F.3d 232, 234 (2d Cir. 2005) (per curiam); see also
Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007)
(relying on the doctrine falsus in uno, falsus in omnibus to
conclude that the agency may decline to credit documentary
evidence submitted with a motion to reopen by an alien who was
found not credible in the underlying proceeding) (citing Siewe
v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)). Specifically,
to the extent the IJ had previously found Alam not credible as
to his alleged involvement in the MQM party, and the BIA had
affirmed that decision, the BIA was under no obligation to
credit Alam’s new assertions in his motion to reopen, which
were again based on his involvement with MQM. See Kaur, 413
F.3d at 234. The BIA further observed that the sworn
affidavit Alam submitted with his motion conflicted with an
earlier motion to reopen with regard to key dates, including
the year he joined MQM and the year his father was killed.
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(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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