Frimpong v. Holder

11-2990-ag
Frimpong v. Holder
BIA
Nelson, IJ
A079 718 451
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
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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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 10th day of April, two thousand twelve.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
_____________________________________
KWABENA FRIMPONG,
Petitioner,
v. 11-2990-ag
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New
York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Russell J.E. Verby, Senior Litigation
Counsel; John D. Williams, Trial
Attorney, Office of Immigration
Litigation, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioner Kwabena Frimpong, a native and citizen of
Ghana, seeks review of a June 28, 2011, decision of the BIA
affirming the July 14, 2010, decision of Immigration Judge
(“IJ”) Barbara Nelson denying his motion to reopen. In re
Kwabena Frimpong, No. A079 718 451 (B.I.A. June 28, 2011),
aff’g No. A079 718 451 (Immig. Ct. N.Y. City July 14, 2011).
We assume the parties’ familiarity with the underlying facts
and procedural history of the case.
Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
the agency’s denial of a motion to reopen for abuse of
discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
2006) (per curiam) (citing INS v. Doherty, 502 U.S. 314, 322-
23 (1992)). An alien seeking to reopen proceedings may file
only one motion to reopen no later than ninety days after the
date on which the final administrative decision was rendered.
See 8 U.S.C. §§ 1229a(c)(7)(A), (C). There is no dispute that
Frimpong’s June 2010 motion to reopen, filed more than five
years after the entry of his February 2005 final order of
removal, was untimely. See id. To overcome this limitation,
Frimpong was required to demonstrate changed country
conditions material to his asylum application. 8 U.S.C.
§ 1229a(c)(7)(C)(ii). The agency reasonably concluded that he
failed to do so. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
169 (2d Cir. 2008) (reviewing the agency’s determination of
changed country conditions for substantial evidence).
The agency reasonably concluded that Frimpong failed to
establish a change in country conditions material to his claim
for relief. Frimpong’s fundamental argument is that he will
be subject to violence and persecution because he is
affiliated with the New Patriotic Party (“NPP”), and because
the National Democratic Congress (“NDC”) has been persecuting
members of the NPP since it gained control of the government
in Ghana. However, Frimpong offered no evidence to support
his general claims that his membership in the NPP would lead
to persecution or violence at the hands of the NDC. Absent
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“solid support” in the record that his fear is objectively
reasonable, Frimpong’s claim of future persecution is
“speculative at best.” See Jian Xing Huang v. INS, 421 F.3d
125, 129 (2d Cir. 2005) (per curiam). Although the articles
he submitted in support of his motion to reopen describe the
criminal prosecution of former government officials in Ghana,
nothing in those articles indicates that members of the NPP
who were not government officials have been subject to
violence or other mistreatment. See INS v. Abudu, 485 U.S.
94, 104-05 (1988) (noting that evidence submitted with motions
to reopen must be material).
Frimpong having failed to raise the argument before the
agency, we decline to consider whether he will be subject to
persecution in Ghana based on his membership in the Ashante
tribe. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (per
curiam). While not jurisdictional, this judicially imposed
exhaustion requirement is mandatory. See Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 119-20, 124 (2d Cir.
2007)(describing the exhaustion requirement as an “affirmative
defense subject to waiver”).
Because the agency’s conclusion that Frimpong did not
establish material changed country conditions is supported by
substantial evidence, the agency did not abuse its discretion
by denying the motion as untimely. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(3)(ii),
1003.23(b)(4)(i). Accordingly, we need not reach Frimpong’s
argument that he is prima facie eligible for asylum,
withholding of removal and CAT relief.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DENIED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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