Diallo v. Holder

10-5094-ag
Diallo v. Holder
BIA
A099 587 680
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 24th day of April, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 ALPHA AMADOU DIALLO,
14 Petitioner,
15
16 v. 10-5094-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Leslie McKay, Assistant
28 Director; Anna Nelson, Trial
29 Attorney; Brad Hopkins, Law Clerk,
30 Office of Immigration Litigation,
31 Civil Division, United States
32 Department of Justice, Washington,
33 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Alpha Amadou Diallo, a native and citizen of Guinea,
6 seeks review of a November 19, 2010, order of the BIA
7 denying his motion to reopen his removal proceedings. In re
8 Alpha Amadou Diallo, No. A099 587 680 (B.I.A. Nov. 19,
9 2010). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
13 Cir. 2005) (per curiam). Although Diallo’s 2010 motion to
14 reopen was untimely filed, see 8 U.S.C. § 1229a(c)(7)(C)(i),
15 the BIA appears to have assumed that Diallo met an exception
16 to the time limitation by showing changed country
17 conditions, see 8 U.S.C. § 1229a(c)(7)(C)(ii), and instead
18 denied the motion based on Diallo’s failure to demonstrate
19 his prima facie eligibility for relief. We find no abuse of
20 discretion in the BIA’s decision.
21 To establish prima facie eligibility for asylum, a
22 movant must demonstrate “a realistic chance that he will be
2
1 able to establish eligibility” during reopened proceedings.
2 Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005)
3 (internal quotation marks omitted). A failure to establish
4 prima facie eligibility is reasonable grounds for the BIA to
5 deny reopening. See INS v. Abudu, 485 U.S. 94, 104-05
6 (1988). While Diallo contends that conditions in Guinea
7 have worsened, his underlying asylum claim — that the
8 government seeks to persecute him on the basis of his prior
9 political activism as a student — is the same claim that the
10 agency previously found not credible. In light of the
11 agency’s prior adverse credibility determination, the BIA
12 reasonably accorded the letter from Diallo’s cousin limited
13 evidentiary weight. See Qin Wen Zheng v. Gonzales, 500 F.3d
14 143, 147 (2d Cir. 2007). Because Diallo submitted no other
15 objective evidence to support his claim that the Guinean
16 government continued to seek him out because of his
17 political activities or to show that his family was harmed
18 because Guinean officials were targeting him, the BIA did
19 not abuse its discretion in finding that he failed to
20 demonstrate his prima facie eligibility for asylum. See
21 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008);
22 Jian Hui Shao v. Mukasey, 546 F.3d 138, 162 (2d Cir. 2008).
3
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2) and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
4