Herrera-Molina v. Holder

11-1117-ag
Herrera-Molina v. Holder
BIA
A027 085 434
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 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _______________________________________
13
14 WILLIAM HERRERA-MOLINA,
15 Petitioner,
16
17 v. 11-1117-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Haroutyun Asatrian, Strasser
25 Asatrian, LLC, Newark, NJ.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Leslie McKay, Assistant
29 Director; Allison Frayer, Trial
30 Attorney, Office of Immigration
1 Litigation, Civil Division, United
2 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
8 is DENIED.
9 Petitioner William Herrera-Molina, a native and citizen
10 of Colombia, seeks review of a February 25, 2011, order of
11 the BIA denying his motion to reopen. In re William
12 Herrera-Molina, No. A027 085 434 (B.I.A. Feb. 25, 2011). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 We review the BIA’s denial of a motion to reopen for
16 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
17 Cir. 2006). When the BIA considers relevant evidence of
18 country conditions in evaluating a motion to reopen, we
19 review the BIA’s factual findings under the substantial
20 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
21 138, 169 (2d Cir. 2008).
22 Because Herrera-Molina filed his motion to reopen more
23 than 90 days after the BIA dismissed his appeal, he was
24 required to show changed circumstances in Columbia to excuse
2
1 the untimely filing. See 8 U.S.C. § 1229a(c)(7)(C)(i),
2 (ii). Herrera-Molina contends that the BIA abused its
3 discretion by failing to address certain evidence, chiefly
4 the Defense Cooperation Agreement (“DCA”) between the United
5 States and Colombia and the fact that his son is an active
6 U.S. Marine. However, a reasonable fact-finder would not be
7 compelled to conclude that the BIA ignored this evidence.
8 See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)
9 (holding that the BIA is not required to “expressly parse or
10 refute on the record each individual argument or piece of
11 evidence offered by the petitioner” as long as it “has given
12 reasoned consideration to the petition, and made adequate
13 findings” (internal citations omitted)).
14 The record supports the BIA’s conclusion that Herrera-
15 Molina failed to demonstrate a change in country conditions.
16 The service of Herrera-Molina’s son on active military duty
17 (in Japan) is a development in the Petitioner’s
18 circumstances, not in conditions in Colombia. See Li Yong
19 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d
20 Cir. 2005). Moreover, the record does not compel the
21 conclusion that the DCA increased the risk of anti-American
22 violence in Colombia; the history of such violence in
3
1 Columbia is long. Accordingly, we defer to the BIA’s
2 conclusion that the DCA did not represent a material change
3 in conditions. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d
4 Cir. 2007) (“[W]here there are two permissible views of the
5 evidence, the fact finder’s choice between them cannot be
6 clearly erroneous.”); Matter of S-Y-G-, 24 I. & N. Dec. 247,
7 257 (BIA 2007) (explaining that an “incremental or
8 incidental” change does not constitute changed country
9 conditions for purposes of motions to reopen).
10 Finally, Herrera-Molina argues that the DCA has changed
11 conditions in Colombia because it has been criticized by
12 Venezuela and Nicaragua.1 But nothing in the record compels
13 the conclusion that tensions between the countries are new,
14 or effected changed country conditions in Colombia.
15 Accordingly, the BIA relied on substantial evidence in
16 finding that Herrera-Molina did not establish changed
17 country conditions and did not abuse its discretion in
18 denying his motion to reopen as untimely. See 8 U.S.C.
19 § 1229a(c)(7)(C)(i),(ii).
20 For the foregoing reasons, the petition for review is
1
We do not consider the internet articles Herrera-
Molina discusses in his brief in support of this argument
as they are not in the administrative record. See 8
U.S.C. § 1252(b)(4)(A).
4
1 DENIED. As we have completed our review, any stay of
2 removal that the Court previously granted in this petition
3 is VACATED, and any pending motion for a stay of removal in
4 this petition is DISMISSED as moot. Any pending request for
5 oral argument in this petition is DENIED in accordance with
6 Federal Rule of Appellate Procedure 34(a)(2), and Second
7 Circuit Local Rule 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
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