Agbomah v. Holder ( 2012 )

11-2159-ag
Agbomah v. Holder
BIA
Mulligan, IJ
A074 767 972
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 15th day of May, two thousand twelve.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 GODWIN IKE AMULOSI AGBOMAH,
14 Petitioner,
15
16 v. 11-2159-ag
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Judy Resnick, Far Rockaway, NY.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; John Hogan, Senior
28 Litigation Counsel; Ashley Y.
29 Martin, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Godwin Ike Amulosi Agbomah, a native and
10 citizen of Nigeria, seeks review of the April 29, 2011,
11 order of the BIA denying his motion to reopen. In re Godwin
12 Ike Amulosi Agbomah, No. A074 767 972 (B.I.A. Apr. 29,
13 2011). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 The BIA’s denial of Agbomah’s motion to reopen was not
16 an abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233
17 (2d Cir. 2005) (per curiam). Agbomah contends that the BIA
18 engaged in improper factfinding. However, because he filed
19 his motion to reopen with the BIA and not the immigration
20 judge (“IJ”), the BIA had the power to make findings of fact
21 in order to determine whether Agbomah presented previously
22 unavailable evidence. See 8 C.F.R. § 1003.2(a), (c); cf.
23 8 C.F.R. § 1003.1(d)(3)(iv).
24 Furthermore, the BIA did not abuse its discretion in
25 denying his motion on the basis that the evidence he sought
2
1 to offer was not previously unavailable. See 8 C.F.R.
2 § 1003.2(c)(1) (2011); INS v. Abudu, 485 U.S. 94, 104-05
3 (1988). In support of his asylum claim, Agbomah submitted
4 only a sworn statement claiming past persecution in 1994 and
5 1999 in Nigeria that he could have presented during his
6 hearings in 2005 and 2009. See Norani v. Gonzales, 451 F.3d
7 292, 294 & n.3 (2d Cir. 2006). The BIA therefore reasonably
8 found that Agbomah failed to present previously unavailable
9 evidence. See 8 C.F.R. § 1003.2(c)(1).
10 Agbomah’s claim that the BIA violated his due process
11 rights by depriving him of the opportunity to file an asylum
12 application is also unavailing. Agbomah had ten years
13 before the IJ ordered him removed to submit an asylum
14 application based on the events that he alleges he
15 experienced more than a decade ago, yet did not. He does
16 not allege that circumstances in Nigeria had changed in a
17 way material to his claim, and his election to delay filing
18 an asylum application is not a basis for accepting an
19 untimely filed asylum application. See 8 U.S.C.
20 § 1229A(c)(7)(C)(ii). Moreover, when Agbomah finally
21 presented his asylum claim, he failed to submit the
22 requisite asylum application with his motion to reopen. See
3
1 8 C.F.R. § 1208.4(b)(4); Yuen Jin v. Mukasey, 538 F.3d 143,
2 151 (2d Cir. 2008). The BIA, therefore, did not deprive
3 Agbomah of a “full and fair hearing.” Li Hua Lin v. U.S.
4 Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006).
5 Because the BIA denied the motion to reopen on the
6 permissible ground that the evidence presented was not
7 previously unavailable, it was not required to address the
8 merits of Agbomah’s claim. See Zheng v. U.S. Dept. of
9 Justice, 409 F.3d 43, 48 (2d Cir. 2005).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, petitioner’s pending
12 motion for a stay of removal in this petition is DENIED as
13 moot.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
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