Jallow v. Holder ( 2013 )

11-4508
Jallow v. Holder
BIA
A073 596 417
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 30th day of September, two thousand thirteen.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 MOMODOU JALLOW,
14
15 Petitioner,
16
17 v. 11-4508
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21
22 Respondent.
23
24 _____________________________________
25
26 FOR PETITIONER: Gerald Karikari, New York, NY.
27
28 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
29 Attorney General; Keith I. McManus,
30 Senior Litigation Counsel; Joseph A.
1 O’Connell, Trial Attorney, Office of
2 Immigration Litigation, Civil
3 Division, United States Department
4 of Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 decision of the Board of Immigration Appeals (“BIA”), it is
8 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
9 review is DENIED.
10 Momodou Jallow, a native and citizen of The Gambia,
11 seeks review of a September 29, 2011, order of the BIA
12 denying his motion to reopen. In re Momodou Jallow, No.
13 A073 596 417 (B.I.A. Sept. 29, 2011). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history of this case. We review the BIA’s denial
16 of a motion to reopen for abuse of discretion. See Kaur v.
17 BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). We find
18 no abuse of discretion in this case.
19 Jallow contends that the time limitation on his motion
20 should have been equitably tolled by the ineffective
21 assistance of his former attorney, who failed to file an
22 appeal brief before the BIA. While equitable tolling is
23 available based on ineffective assistance, Iavorski v. INS,
24 232 F.3d 124, 134 (2d Cir. 2000), a petitioner must also
25 demonstrate, inter alia, that he exercised due diligence in
2
1 pursuing his case during the period in which he seeks to
2 toll, Jin Bo Zhao v. INS, 452 F.3d 154, 158-59 (2d Cir.
3 2006) (per curiam). As Jallow provided no evidence that he
4 exercised due diligence, the BIA did not abuse its
5 discretion in declining to equitably toll the period for
6 filing a motion to reopen.
7 Nor did the BIA err in finding that Jallow failed to
8 establish changed conditions in The Gambia to excuse his
9 untimely filing because his evidence does not show an
10 increase in the prevalence of female genital mutilation
11 since the time of his last hearing. See Matter of S-Y-G-,
12 24 I&N Dec. 247, 253 (BIA 2007) (“[W]e compare the evidence
13 of country conditions submitted with the motion to those
14 that existed at the time of the merits hearing below.”).
15 In addition, birth of Jallow’s children in the United
16 States was a change in personal circumstances, not a change
17 of conditions “arising in” The Gambia. See
18 8 C.F.R. § 1003.2(c)(3)(ii); see also Wei Guang Wang v. BIA,
19 437 F.3d 270, 273-74 (2d Cir. 2006).
20 Finally, we lack jurisdiction to review Jallow’s
21 challenge to the underlying adverse credibility
22 determination. See Kaur, 413 F.3d at 233.
3
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
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