Indra Gurung v. Eric Holder, Jr. , 506 F. App'x 219 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1776
INDRA GURUNG,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: December 27, 2012 Decided: January 24, 2013
Before DAVIS, KEENAN, and FLOYD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Khagendra Gharti-Chhetry, New York, New York, for Petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Terri J.
Scadron, Assistant Director, Anthony W. Norwood, Senior
Litigation Counsel, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Indra Gurung, a native and citizen of Nepal, petitions
for review of the Board of Immigration Appeals’ order denying
her motion to reopen. * Gurung claims she established changed
country conditions that make her eligible for relief from
removal. We deny the petition for review.
Gurung had thirty days from the date of the final
order from which to file a timely petition for review. See 8
U.S.C. § 1252(b)(1) (2006). Because the petition was filed June
20, 2012, it is only timely filed as to the May 24, 2012 order
denying reopening. The thirty day time period is
“jurisdictional in nature and must be construed with strict
fidelity to [its] terms.” Stone v. INS, 514 U.S. 386, 405
(1995). It is “not subject to equitable tolling.” Id. Thus,
this Court does not have jurisdiction to review the Board’s
February 23, 2012 order finding no clear error with the adverse
credibility finding and dismissing Gurung’s appeal from the
immigration judge’s order.
This court reviews the denial of a motion to reopen
for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323-
24 (1992); Mosere v. Mukasey, 552 F.3d 397, 400 (4th Cir. 2009);
*
The Board also construed Gurung’s motion as a motion for
reconsideration and denied it as untimely. Gurung does not
challenge that finding.
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see also 8 C.F.R. § 1003.2(a) (2012). The “denial of a motion
to reopen is reviewed with extreme deference, given that motions
to reopen are disfavored because every delay works to the
advantage of the deportable alien who wishes merely to remain in
the United States.” Sadhvani v. Holder, 596 F.3d 180, 182 (4th
Cir. 2009) (internal quotation marks omitted).
To establish changed country conditions, the applicant
must present evidence that “is material and was not available
and would not have been discovered or presented at the previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii) (2006); see also 8
C.F.R. § 1003.2(c)(3)(ii). Furthermore, “[a] motion to reopen
proceedings shall state the new facts that will be proven at a
hearing to be held if the motion is granted and shall be
supported by affidavits or other evidentiary material.” 8
C.F.R. § 1003.2(c)(1). In addition to identifying the
previously unavailable evidence, an applicant seeking to
establish changed country conditions must demonstrate her prima
facie eligibility for asylum, that is, she must demonstrate that
the new evidence would likely alter the result of his case. See
INS v. Abudu, 485 U.S. 94, 104-05 (1988); Onyeme v. INS, 146
F.3d 227, 234 (4th Cir. 1998).
We conclude that the Board did not abuse its
discretion denying the motion to reopen. Gurung’s new evidence
in support of her claim that country conditions had changed did
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not address the adverse credibility finding. Thus, even if
country conditions had changed, Gurung failed to address the
finding that her claim that she was targeted by Maoists was not
credible.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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