Dia v. Holder

11-1212-ag
Dia v. Holder
BIA
A077 547 961
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 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 8th day of February, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 PETER W. HALL,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 ______________________________________
12
13 SIDHIGUI DIA,
14 Petitioner,
15 11-1212-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Theodore Vialet, New York, New York.
24
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Mary Jane Candaux,
3 Assistant Director, Laura M.L.
4 Maroldy, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Sidhigui Dia, allegedly a native and citizen
14 of Guinea, seeks review of a March 8, 2011, decision of the
15 BIA denying his motion to reopen his removal proceedings.
16 In re Dia, No. A077 547 961 (B.I.A. Mar. 8, 2011). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history of the case.
19 We review the BIA’s denial of a motion to reopen for
20 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
21 (2d Cir. 2006). Dia’s motion to reopen was clearly
22 untimely, as it was filed more than eight years after the
23 BIA dismissed his appeal, and the BIA did not abuse its
24 discretion in finding that Dia failed to establish changed
25 country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
26 Regardless of whether Dia established that conditions in
2
1 Guinea had deteriorated for his alleged ethnic group, such
2 evidence would be material only if Dia had credibly
3 established that he is from Guinea. See Dhoumo v. Board of
4 Immigration Appeals, 416 F.3d 172, 174 (2d Cir. 2005) (“The
5 determination of an alien’s nationality . . . is a threshold
6 inquiry in determining the alien’s eligibility for
7 asylum.”); see also Wangchuck v. DHS, 448 F.3d 524, 528-29
8 (2d Cir. 2006). In this case, the BIA’s conclusion that Dia
9 failed to establish either his identity or his nationality
10 is well supported and provides a sufficient basis to deny
11 relief. See Borovikova v. U.S. Dep’t of Justice, 435 F.3d
12 151, 158 (2d Cir. 2006).
13 Dia admitted that he had initially applied for asylum
14 under a false name, gave testimony that was untrue, and
15 submitted false documents in support of that application.
16 Moreover, in his initial asylum proceedings, he was found to
17 be incredible. Thus, the BIA’s decision not to credit the
18 evidence submitted in support of the motion to reopen was
19 not an abuse of discretion. See Qin Wen Zheng v. Gonzales,
20 500 F.3d 143, 147-48 (2d Cir. 2007) (finding that BIA did
21 not abuse its discretion by refusing to credit evidence
22 submitted in support of a motion to reopen where an adverse
23 credibility determination was made in the underlying
3
1 proceedings); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.
2 2007) (where the agency’s “finding of fabrication (supported
3 by substantial evidence) serves as the basis for
4 discrediting other evidence, a reviewing court is in no
5 position to conclude that the discrediting of the remaining
6 evidence is unsupported by substantial evidence”). For
7 the foregoing reasons, the petition for review is DENIED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
12
13
4