Sesay v. Lynch , 659 F. App'x 698 ( 2016 )

15-847
Sesay v. Lynch
BIA
A095 405 335
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 1st day of September, two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12
13 MOHAMED SESAY,
14
15 Petitioner,
16
17 v. 15-847
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Thomas V. Massucci, New York, New
26 York.
27
28 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
29 Assistant Attorney General; Francis
30 W. Fraser, Senior Litigation
1 Counsel; W. Daniel Shieh, Trial
2 Attorney, Office of Immigration
3 Litigation, United States
4 Department of Justice, Washington,
5 DC.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 Petitioner Mohamed Sesay, a native and citizen of Sierra
12 Leone, seeks review of a March 10, 2015, decision of the BIA
13 denying of his motion to reopen. In re Mohamed Sesay, No. A095
14 405 335 (B.I.A. Mar. 10, 2015). We assume the parties’
15 familiarity with the underlying facts and procedural history
16 in this case.
17 We review the denial of a motion to reopen for abuse of
18 discretion, but review any findings regarding country
19 conditions for substantial evidence. Jian Hui Shao v. Mukasey,
20 546 F.3d 138, 168-69 (2d Cir. 2008). When, as here, an alien
21 files a timely petition from the denial of a motion to reopen,
22 we review only the denial of the motion, and not the agency’s
23 underlying decisions. See Ke Zhen Zhao v. U.S. Dep’t of
24 Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).
2
1 An alien seeking to reopen proceedings may file only one
2 motion to reopen no later than 90 days after the date on which
3 the final administrative decision was rendered. 8 U.S.C.
4 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). However,
5 that time limitation is excused if the motion “is based on
6 changed country conditions arising in the country of
7 nationality or the country to which removal has been ordered,
8 if such evidence is material and was not available and would
9 not have been discovered or presented at the previous
10 proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8
11 C.F.R. § 1003.2(c)(3)(ii).
12 The BIA had the discretion to discredit Sesay’s evidence
13 based on the underlying adverse credibility determination
14 against him. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147
15 (2d Cir. 2007) (holding that the BIA may decline to credit
16 documentary evidence submitted with a motion to reopen if it
17 has “legitimate concerns about [the petitioner’s] credibility”
18 based on a previous adverse credibility determination and the
19 petitioner offers no other corroborating evidence). Sesay
20 submitted a newspaper article and affidavits from his sister
21 and friends. As a general matter, these documents largely
3
1 reiterated his original asylum claim, which the agency
2 previously rejected as lacking credibility. Moreover, the
3 article conflicted with Sesay’s original application with
4 respect to his father’s name and the number of siblings he has,
5 and despite focusing on Sesay’s father, omitted mention of his
6 father’s 1999 murder. The BIA was entitled to question whether
7 the article actually related to Sesay or another person with
8 the same name, particularly given Sesay’s credibility problems.
9 See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (finding no
10 abuse of discretion when the BIA “clearly explained that the
11 evidence submitted by petitioner in support of her motion was
12 not ‘material’ because it did not rebut the adverse credibility
13 finding that provided the basis for the IJ’s denial of
14 petitioner’s underlying asylum application”).
15 Additionally, the BIA found that most of the information
16 in the newspaper article was previously available. That
17 finding was also sound. The article reports that Sesay fled
18 Sierra Leone to escape the Poro Society persecution. If so,
19 then that persecution occurred long before Sesay’s merits
20 hearing in 2008: Sesay left Sierra Leone in 1999. See 8 U.S.C.
21 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
4
1 Sesay asserts that his motion detailed a new threat from
2 the Poro Society, a different rebel group from the RUF described
3 in his first application. Sesay did not make this distinction
4 to the BIA and the agency did not discuss it. His argument is
5 therefore unexhausted, and so we decline to consider it. See
6 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir.
7 2007) (providing that judicially imposed issue exhaustion is
8 mandatory).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of removal
11 that the Court previously granted in this petition is VACATED,
12 and any pending motion for a stay of removal in this petition
13 is DISMISSED as moot. Any pending request for oral argument
14 in this petition is DENIED in accordance with Federal Rule of
15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
16 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
5