Modeba v. Gonzales

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2454
GILDAS LUCIEN KOYANBGO MODEBA,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A79-513-586)
Argued: October 25, 2005 Decided: February 23, 2006
Before WILKINS, Chief Judge, and WILKINSON and GREGORY, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Marc Seguinot, THE HELEIN LAW GROUP, L.L.P., McLean,
Virginia, for Petitioner. Luis Enrique Perez, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler,
Assistant Attorney General, Civil Division, M. Jocelyn Lopez
Wright, Assistant Director, Civil Division, Curtis C. Pett, Tax
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gildas Lucien Koyanbgo Modeba petitions for review of an
order of the Board of Immigration Appeals (the Board) denying his
motion to reopen his asylum proceedings. Finding no error, we
affirm.
I.
Modeba, a citizen and native of the Central African Republic
(CAR), entered the United States in July 1999 on a nonimmigrant B-2
“visitor for pleasure” visa. This visa allowed him to remain in
the United States until January 23, 2000. In August 2001, more
than one year after his visa expired, Modeba filed an application
for asylum, see 8 U.S.C.A. § 1158 (West 1999 & Supp. 2005),
withholding of removal, see 8 U.S.C.A. § 1231(b)(3) (West 1999),
and withholding of removal under the United Nations Convention
Against Torture, see United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85.
The immigration judge (IJ) who reviewed Modeba’s application
denied it as untimely, see 8 U.S.C.A. § 1158(a)(2)(B), rejecting
Modeba’s argument that he properly delayed filing the application
with hope that the conditions in CAR would improve, see id.§ 1158(a)(2)(D). The IJ alternatively held that even if Modeba’s
asylum application had been timely filed, it would have been denied
on the merits. The IJ pointed to numerous inconsistencies in the
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record, including discrepancies between Modeba’s testimony and that
of his brother, Mermoz, regarding key dates, differences between
Modeba’s and Mermoz’s birth certificates, and the failure to
notarize a letter from Modeba’s mother informing him of an attempt
on his father’s life and urging him to seek asylum in the United
States. The IJ also determined that Modeba did not prove that he
suffered from past persecution or had a well-founded fear of future
persecution. The Board affirmed the decision of the IJ without
opinion.
Instead of filing a petition for review, Modeba moved to
reopen the proceedings for consideration of new evidence.* The new
evidence submitted by Modeba primarily responded to the IJ’s
criticism of the evidence presented at the asylum hearing. Among
the items Modeba submitted were the results of DNA analysis
establishing a familial relationship between himself, Mermoz, and
his mother; letters from the embassy of CAR authenticating his and
Mermoz’s birth certificates; and a notarized affidavit from his
mother attesting to the authenticity of her earlier letter to
Modeba and clarifying the family’s relationship with the former and
current CAR governments. Modeba also submitted his own affidavit,
attesting that his nervousness and young age were responsible for
the inconsistencies in his prior testimony. Last, Modeba offered
*
This petition for review is from the order denying the motion
to reopen. The denial of Modeba’s asylum application is not before
us.
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a Department of State country report for CAR and a report from the
United Nations High Commission for Refugees in support of his claim
that conditions within CAR were deteriorating.
The Board denied the motion to reopen after determining that
the evidence Modeba offered could have been presented at his asylum
hearing. In particular, the Board indicated that Modeba was on
notice that these documents were vital because “identity ... is
always an issue in a claim for asylum and [Modeba] could have
presented the authenticated documents at the prior proceeding.”
J.A. 162-63. The Board also determined that even if the new
evidence were admitted it would not change the result because the
evidence failed to resolve all the “inconsistencies in the record.”
Id. at 163.
II.
In light of the “strong public interest” in the finality of
administrative decisions, a petitioner seeking to reopen his asylum
case faces a substantial hurdle. M.A. v. INS, 899 F.2d 304, 309
(4th Cir. 1990) (en banc) (internal quotation marks omitted). To
prevail on a motion to reopen, the movant must present evidence
that is both material to his application and that was not capable
of being discovered or presented at his initial hearing.
See 8 C.F.R. § 1003.2(c)(1) (2005). The Board must then decide
whether the newly presented evidence warrants reopening, not the
merits of the underlying claim. See M.A., 899 F.2d at 307.
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“Because the immigration statutes do not contemplate reopening” and
the applicable regulations “plainly disfavor motions to reopen,” a
denial of a motion to reopen “must be reviewed with extreme
deference.” Id. at 308 (internal quotation marks omitted).
Our scope of review in this case is thus quite limited.
Regardless of how dire conditions in CAR may be and how much
persecution Modeba may face if he returns there, the only question
we may consider is whether Modeba has shown that the Board abused
its discretion in concluding that he had not presented evidence
that was not available and could not have been presented in the
prior proceeding. Modeba cannot carry this burden. While the
evidence he provided is clearly material, he did not establish that
this evidence was unavailable and not capable of being discovered
or presented at his asylum hearing. We therefore affirm.
AFFIRMED
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