Sano v. Holder , 495 F. App'x 181 ( 2012 )


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  •          11-4172
    Sano v. Holder
    BIA
    A072 435 656
    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 10th day of September, two thousand twelve.
    5
    6       PRESENT:
    7                JON O. NEWMAN,
    8                REENA RAGGI,
    9                CHRISTOPHER F. DRONEY,
    10                     Circuit Judges.
    11       _____________________________________
    12
    13       ABRAHAM SORY SANO,
    14                Petitioner,
    15                                                              11-4172
    16                        v.                                    NAC
    17
    18       ERIC H. HOLDER, JR., UNITED STATES
    19       ATTORNEY GENERAL,
    20                Respondent.
    21       _____________________________________
    22
    23       FOR PETITIONER:               Gary J. Yerman, Esq., Yerman &
    24                                     Associates, LLC, New York, New York.
    25
    26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
    27                                     Attorney General; Keith I. McManus,
    28                                     Senior Litigation Counsel; Brendan
    29                                     P. Hogan, Attorney, Office of
    30                                     Immigration Litigation, Civil
    31                                     Division, United States Department
    32                                     of Justice, Washington, D.C.
    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
    4   is DENIED.
    5       Petitioner Abraham Sory Sano, a native and citizen of
    6   Guinea, seeks review of a September 15, 2011, decision of
    7   the BIA, denying his motion to reopen his removal
    8   proceedings.   In re Abraham Sory Sano, No. A072 435 656
    9   (B.I.A. Sept. 15, 2011).   We assume the parties’ familiarity
    10   with the underlying facts and procedural history of the
    11   case.
    12       We review the BIA’s denial of a motion to reopen for
    13   abuse of discretion.   See Ali v. Gonzales, 
    448 F.3d 515
    , 517
    14   (2d Cir. 2006) (per curiam).   Here, because Sano’s motion
    15   was indisputably time and numerically barred, see 8 U.S.C.
    16   § 1229a(c)(7)(A), (C), he was required to establish
    17   materially “changed country conditions arising in [his]
    18   country of nationality,” id., § 1229a(c)(7)(C)(ii); see also
    19   
    8 C.F.R. § 1003.2
    (c)(3)(ii).
    20       Substantial evidence supports the BIA’s determination
    21   that Sano failed to satisfy this standard.   See Jian Hui
    22   Shao v. Mukasey, 
    546 F.3d 138
    , 169 (2d Cir. 2008) (holding
    2
    1   that when the agency explicitly considers relevant evidence
    2   of country conditions in evaluating a motion to reopen, this
    3   Court reviews the agency’s factual findings for substantial
    4   evidence).
    5       First, because the evidence Sano submitted in support
    6   of his motion did not rebut the immigration judge’s (“IJ”)
    7   prior adverse credibility finding, it was not error for the
    8   BIA to rely on that finding in declining to afford
    9   substantial weight to Sano’s affidavit in support of
    10   reopening.   See Qin Win Zheng v. Gonzales, 
    500 F.3d 143
    ,
    11   147-48 (2d Cir. 2007) (“The BIA’s use here of the IJ’s
    12   unchallenged conclusion that Zheng was not credible in
    13   support of its refusal to credit the authenticity of
    14   [evidence submitted in support of a motion to reopen] was .
    15   . . appropriate.”); accord Kaur v. B.I.A., 
    413 F.3d 232
    , 234
    16   (2d Cir. 2005) (per curiam).   Second, the BIA did not err by
    17   affording diminished weight to unsworn statements submitted
    18   by Sano’s relatives, who, as the BIA noted, were interested
    19   witnesses.   See Matter of H-L-H- & Z-Y-Z-, 
    25 I. & N. Dec. 20
       209, 215 (B.I.A. 2010)(giving diminished weight to letters
    21   from relatives that were written by interested witnesses not
    22
    3
    1   subject to cross-examination), abrogated on other grounds by
    2   Hui Lin Huang v. Holder, 
    677 F.3d 130
     (2d Cir. 2012).
    3       And third, consistent with the BIA’s finding, the
    4   objective evidence Sano submitted in support of reopening
    5   failed to demonstrate materially changed country conditions
    6   in Guinea.    Among other things, that evidence showed that
    7   the violence prior to the 2010 election was instigated by
    8   members of both the Malinke and Fulani/Peuhl ethnic groups;
    9   government-led security forces were responsible for a
    10   considerable portion of the violence and targeted, in
    11   particular, members of the Fulani/Peuhl ethnic group; and,
    12   following the election, Alpha Conde, a Malinke, was
    13   inaugurated president.    Taken together, these facts do not
    14   demonstrate that members of the Malinke ethnic group, like
    15   Sano, are now more susceptible to violence or persecution
    16   than during the previous regime.    But even assuming that
    17   violence against Malinkes persists in Guinea, such
    18   conditions would not differ materially from those Sano
    19   described in his original asylum application.    Because
    20   substantial evidence supports the BIA’s country conditions
    21   finding, we do not address its alternative finding regarding
    22   relocation.
    4
    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
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