Khanal v. Holder ( 2010 )

09-1730-ag
Khanal v. Holder
BIA
A076 495 146
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
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MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
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 2 nd day of July, two thousand ten.
PRESENT:
JON O. NEWMAN,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
_____________________________________
PRAKASH KHANAL,
Petitioner,
v. 09-1730-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Usman B. Ahmad, Long Island City,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Daniel E. Goldman, Senior
Litigation Counsel; Brianne Whelan
Cohen, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Prakash Khanal, a native and citizen of Nepal, seeks
review of a March 27, 2009 order of the BIA denying his
motion to reopen. In re Prakash Khanal, No. A076 495 146
(B.I.A. Mar. 27, 2009). We assume the parties’ familiarity
with the underlying facts and procedural history of this
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)). We review for
substantial evidence the BIA’s evaluation of country
conditions evidence submitted with a motion to reopen. Jian
Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
A party may file only one motion to reopen removal
proceedings and generally must do so no later than 90 days
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after the date on which the final administrative decision
was rendered in the proceeding sought to be reopened. 8
C.F.R. § 1003.2(c)(1),(2). The time and number limitations
do not apply, however, to a motion to reopen “based on
changed circumstances arising in the country of nationality
or in the country to which deportation has been ordered, if
such evidence is material and was not available and could
not have been discovered or presented at the previous
hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Petitioner concedes
that his motion to reopen was untimely but submits that the
BIA erred in concluding that his motion did not fall within
the exception for changed country conditions. We disagree.
The BIA properly concluded that Khanal’s alleged
membership in the Coalition for National Unity and
Reconciliation in Nepal (CNURN) was a change in his personal
circumstances, not a change in country conditions. See
Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d
Cir. 2005); Wei Guang Wang v. BIA, 437 F.3d 270, 272, 274
(2d Cir. 2006). Further, we detect no error in the BIA’s
determination that while conditions in Nepal had changed
since Khanal’s hearing, the changes were not material to his
claim. See 8 C.F.R. § 1003.2(c)(3)(ii). Khanal does not
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dispute this materiality finding. Rather, he argues that
the finding of changed country conditions alone required
remand. The argument runs counter to the plain language of
the INA, which requires a showing that any change is
“material.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8
C.F.R. § 1003.2(c)(3)(ii). Khanal’s assertions that “[t]he
country reports have shown that [he] believes that he will
be persecuted by Central Government of Nepal” and that “[he]
is known by the central government of Nepal concerning his
actions and support for a unified and peaceful government,”
Pet’r’s Br. at 9, are unsupported by the record. Thus, we
cannot conclude that the BIA abused its discretion in
denying Khanal’s motion to reopen. See Ali v. Gonzales, 448
F.3d at 517; cf. Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,
93 (2d Cir. 2001) (observing that BIA abuses its discretion
when it acts in arbitrary or capricious manner).
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
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Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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