Chang Dong Lin v. Holder ( 2014 )

13-961
Osei-Wusu v. Holder
BIA
Straus, IJ
A099 213 037
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 14th day of April, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 KWADJO AKYAW OSEI-WUSU, AKA ACHAW
14 OSEI-OWUSU,
15 Petitioner,
16
17 v. 13-961
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Ryan E. Bausch, West Hartford, CT.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Douglas E. Ginsburg,
28 Assistant Director; Matthew B.
29 George, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Kwadjo Akyaw Osei-Wusu, a native of Nigeria
10 and citizen of Ghana, seeks review of a February 19, 2013,
11 order of the BIA, affirming the September 19, 2011, decision
12 of an Immigration Judge (“IJ”), which denied his motion to
13 reopen as untimely. In re Kwadjo Akyaw Osei-Wusu, No. A099
14 213 037 (B.I.A. Feb. 19, 2013), aff’g No. A099 213 037
15 (Immig. Ct. Hartford, CT Sept. 19, 2011). We assume the
16 parties’ familiarity with the underlying facts and
17 procedural history in this case.
18 We review the BIA’s decision affirming an IJ’s denial
19 of a motion to reopen for abuse of discretion. Iavorski v.
20 INS, 232 F.3d 124, 128 (2d Cir. 2000); see Ali v. Gonzales,
21 448 F.3d 515, 517 (2d Cir. 2006) (per curiam). An alien
22 seeking to reopen proceedings is required to file a motion
23 to reopen no later than 90 days after the date on which the
24 final administrative decision was rendered. See 8 U.S.C.
25 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). There is no
2
1 dispute that Osei-Wusu’s motion to reopen, filed in 2011,
2 was untimely because his order of removal became final in
3 2006. See 8 U.S.C. § 1101(a)(47)(B)(I). Osei-Wusu
4 contends, however, that his creation of a Facebook group
5 page critical of the Ghanaian government constitutes
6 materially changed country conditions excusing his motion
7 from the applicable time limitation.
8 We conclude that the BIA did not abuse its discretion
9 in denying Osei-Wusu’s motion for failure to demonstrate his
10 prima facie eligibility for relief. See Jian Hui Shao v.
11 Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (recognizing that
12 an alien’s “ability to secure reopening depends on a
13 demonstration of prima facie eligibility for [relief], which
14 means she must show a ‘realistic chance’ that she will be
15 able to obtain such relief” (citations omitted)). The
16 agency reasonably determined that Osei-Wusu did not
17 demonstrate his prima facie eligibility for asylum and
18 withholding of removal because the State Department’s 2010
19 Human Rights Report contained no reports of internet
20 monitoring and indicated that Ghanaians were free to engage
21 in peaceful expression of views online. See Jian Xing Huang
22 v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005) (holding that
3
1 absent solid support in the record for the petitioner’s
2 assertion that he would be persecuted, his fear was
3 “speculative at best”). The agency also properly noted that
4 Osei-Wusu had failed to present any evidence showing that
5 his Facebook group page was widely viewed. See Hongsheng
6 Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (“[T]o
7 establish a well-founded fear of persecution in the absence
8 of any evidence of past persecution, an alien must make some
9 showing that authorities in his country of nationality are
10 either aware of his activities or likely to become aware of
11 his activities.”). In addition, the agency reasonably
12 determined that Osei-Wusu had not demonstrated his prima
13 facie eligibility for adjustment of status because he
14 submitted no evidence showing that his wife was a United
15 States citizen or that he was the beneficiary of an approved
16 visa petition. See 8 U.S.C. § 1255(a) (listing eligibility
17 requirements for adjustment of status).
18 Because the BIA did not abuse its discretion in denying
19 Osei-Wusu’s motion for failure to demonstrate his prima
20 facie eligibility for relief, we decline to consider his
21 challenge to the agency’s alternative finding that country
22 conditions had not materially changed. See INS v.
4
1 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
2 courts and agencies are not required to make findings on
3 issues the decision of which is unnecessary to the results
4 they reach.”).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, the stay of
7 removal that the Court previously granted in this petition
8 is VACATED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
5