Sherpa v. Lynch , 668 F. App'x 6 ( 2016 )

15-661
Sherpa v. Lynch
BIA
A087 774 371
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 16th day of August, two thousand sixteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 SHER LAKPA SHERPA,
14 Petitioner,
15
16 v. 15-661
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry,
24 New York, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Julie M.
28 Iversen, Senior Litigation Counsel;
29 Jeffrey R. Meyer, Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
33
34
35
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Sher Lakpa Sherpa, a native and citizen of
6 Nepal, seeks review of a February 12, 2015, BIA decision denying
7 his motion to reopen. In re Sher Lakpa Sherpa, No. A087 774
8 371 (B.I.A. Feb. 12, 2015). We assume the parties’ familiarity
9 with the underlying facts and procedural history in this case.
10 We review the BIA’s denial of a motion to reopen for abuse
11 of discretion, “mindful that motions to reopen ‘are
12 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)
13 (quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)). An alien
14 seeking to reopen proceedings may file one motion to reopen no
15 later than 90 days after the final administrative decision is
16 rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
17 § 1003.2(c)(2). This time limitation may be excused if the
18 motion to reopen is made to apply or reapply for relief “based
19 on changed country conditions arising in the country of
20 nationality or the country to which removal has been ordered,
21 if such evidence is material and was not available and would
22 not have been discovered or presented at the previous
2
1 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); accord 8 C.F.R.
2 § 1003.2(c)(3)(ii). Irrespective of whether this exception
3 applies, the motion “must be accompanied by the appropriate
4 application for relief.” 8 C.F.R. § 1003.2(c)(1).
5 Sherpa’s 2014 motion to reopen was untimely. It sought
6 asylum, withholding of removal, and CAT relief based on changed
7 conditions in his native Nepal, but did not include a new
8 application for relief. The BIA did not abuse its discretion
9 by requiring a new application. 8 C.F.R. § 1003.2(c)(1); see
10 Lin Xing Jiang v. Holder, 639 F.3d 751, 757 (7th Cir. 2011);
11 Palma-Mazariegos v. Keisler, 504 F.3d 144, 147 (1st Cir. 2007);
12 Waggoner v. Gonzales, 488 F.3d 632, 639 (5th Cir. 2007).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of removal
15 that the Court previously granted in this petition is VACATED,
16 and any pending motion for a stay of removal in this petition
17 is DISMISSED as moot. Any pending request for oral argument
18 in this petition is DENIED in accordance with Federal Rule of
19 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
20 34.1(b).
21 FOR THE COURT:
22 Catherine O=Hagan Wolfe, Clerk
3