Barry v. Holder

14-939
Barry v. Holder
BIA
Burr, IJ
A073 594 961
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 24th day of April, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 MOHAMED Y. BARRY,
14 Petitioner,
15
16 v. 14-939
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Theodore Vialet, New York, New York.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; Emily Anne
28 Radford, Assistant Director; Kohsei
29 Ugumori, Senior Litigation Counsel,
1 Office of Immigration Litigation,
2 United 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 is
8 DENIED.
9 Petitioner Mohamed Y. Barry seeks review of a March 5, 2014
10 decision of the BIA, affirming a June 28, 2012 order of an
11 Immigration Judge (“IJ”), denying Barry’s motion to reopen. In
12 re Barry, No. A073 594 961 (B.I.A. Mar. 5, 2014), aff’g No. A073
13 594 961 (Immig. Ct. N.Y. City June 28, 2012). We assume the
14 parties’ familiarity with the underlying facts and procedural
15 history in this case.
16 We have reviewed the decisions of both the IJ and the BIA
17 “for the sake of completeness.” Wangchuck v. Dep’t of Homeland
18 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the agency’s
19 denial of a motion to reopen for abuse of discretion, mindful
20 of the Supreme Court’s admonition that such motions are
21 “disfavored.” See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
22 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)). An
23 alien seeking to reopen proceedings must move to reopen no later
2
1 than 90 days after the date on which the final administrative
2 decision was rendered. 8 U.S.C. § 1229a(c)(7)(A), (C); 8
3 C.F.R.
4 § 1003.2(c)(2). There is no dispute that Barry’s 2012 motion
5 to reopen was untimely because the agency’s order of removal
6 became final in 1996, sixteen years earlier.
7 The time limitation does not apply, however, to motions to
8 reopen to apply for asylum or withholding of removal if they
9 are “based on changed country conditions arising in the country
10 of nationality or the country to which removal has been ordered,
11 if such evidence is material and was not available and would
12 not have been discovered or presented at the previous hearing.”
13 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
14 § 1003.2(c)(3)(ii). Failure to offer such evidence is,
15 therefore, a proper ground for denial, as is the movant’s
16 failure to establish a prima facie case for the underlying
17 substantive relief sought. INS v. Abudu, 485 U.S. 94, 104-05
18 (1988).
19 The agency did not abuse its discretion in denying Barry’s
20 motion to reopen because it was untimely and did not qualify
21 for any exception to the filing deadline. In his motion, Barry
3
1 presented evidence of changed country conditions in Guinea, his
2 newly-claimed country of nationality. The statute pertaining
3 to the filing deadline for a motion to reopen provides for an
4 exemption if the movant presents evidence “based on changed
5 country conditions arising in the country of nationality or the
6 country to which removal has been ordered,” 8 U.S.C.
7 § 1229a(c)(7)(C)(ii). Barry was ordered removed to
8 Mauritania, not Guinea. The regulations do not encompass a
9 situation in which the alien asserts that conditions have
10 changed in a country to which he is not being removed. See 8
11 C.F.R. § 1003.2(c)(3)(ii). Barry could have moved to reopen
12 on the basis that conditions have changed in Mauritania and
13 presented evidence to that effect, but he did not. Nor does
14 he challenge the agency’s original order of removal to
15 Mauritania, or its failure to reexamine his country of
16 citizenship. Thus, the denial of his motion to reopen as
17 untimely was not an abuse of discretion.
18 Barry also asked the agency to reopen proceedings on
19 humanitarian grounds. The BIA construed this request as a
20 request to exercise its authority to reopen proceedings sua
21 sponte, and declined to do so. We lack jurisdiction to review
4
1 this entirely discretionary determination. Ali, 448 F.3d at
2 518.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot. Any pending request for oral argument
8 in this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O=Hagan Wolfe, Clerk
5