Diallo v. Holder

11-926 BIA
Diallo v. Holder A098 361 270
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 28th day of June, two thousand thirteen.
5
6 PRESENT:
7
8 JOHN M. WALKER, JR.,
9 ROSEMARY S. POOLER,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 ______________________________________
13
14 THIERNO DIALLO,
15 Petitioner,
16
17 v. 11-926
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Theodore Vialet, New York, NY.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Cindy S. Ferrier, Assistant
28 Director; Kimberly A. Burdge, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, DC.
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 Thierno Diallo, a native and citizen of Guinea, seeks
6 review of a February 22, 2011, decision of the BIA denying
7 his motion to reopen. In re Thierno Diallo, No. A098 361
8 270 (B.I.A. Feb. 22, 2011). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of this case.
11 We review the BIA’s denial of Diallo’s motion to reopen
12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). A motion to reopen proceedings
14 “must be filed no later than 90 days after the date on which
15 the final administrative decision was rendered,” unless the
16 movant provides previously unavailable material evidence.
17 8 C.F.R. § 1003.2(c)(1), (2). Where, as here, the motion to
18 reopen is untimely, failure to offer such evidence is a
19 proper ground on which the BIA may deny a motion to reopen,
20 as is the movant’s failure to establish a prima facie case
21 for the underlying substantive relief sought. See INS v.
22 Abudu, 485 U.S. 94, 104-05 (1988).
2
1 We find that the BIA did not abuse its discretion in
2 finding that Diallo failed to establish his prima facie
3 eligibility for relief based on his fear that the Guinean
4 military regime was actively pursuing him or would harm him
5 on account of his political activities in the United States.
6 See Abudu, 485 U.S. at 104-105. In support of his motion,
7 Diallo submitted letters from his brother and friend
8 describing the Guinean military’s suppression of peace
9 demonstrators at a 2009 peace rally, and warning Diallo that
10 his life would be in danger if he returned to Guinea. The
11 BIA, however, reasonably afforded little weight to this
12 evidence because, as the BIA found, the letters were
13 “unauthenticated” and possessed “little indicia of
14 reliability,” particularly in light of Diallo’s underlying
15 adverse credibility determination. See Xiao Ji Chen v. U.S.
16 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding
17 that the weight afforded to the applicant's evidence in
18 immigration proceedings lies largely within the discretion
19 of the agency); see also Qin Wen Zheng v. Gonzales, 500 F.3d
20 143, 146-47 (2d Cir. 2007) (relying on the doctrine of
21 falsus in uno, falsus in omnibus to conclude that the agency
22 may decline to credit documentary evidence submitted with a
23 motion to reopen by an alien who was found not credible in
24 the underlying proceedings). Moreover, although Diallo
3
1 submitted evidence in an attempt to demonstrate changed
2 country conditions, the BIA reasonably determined that any
3 potential future harm that Diallo may suffer in Guinea as a
4 result of civil strife and societal violence did not
5 constitute a valid basis for asylum, as the harm would not
6 be on account of a protected ground. See Melgar de Torres
7 v. Reno, 191 F.3d 307, 314 (2d Cir. 1999) (stating that
8 “persecution must be on account of an enumerated ground set
9 forth in the Act, and general crime conditions are not a
10 stated ground”). Thus, we need not decide whether Diallo
11 established materially changed country conditions excusing
12 the time limitation applicable to his motion to reopen.
13 For the foregoing reasons, the petition for review is
14 DENIED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
4