11-4942
Sherpa v. Holder
BIA
A099 928 380
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 3rd day of October, two thousand thirteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 GELJEN SHERPA,
14 Petitioner,
15
16 v. 11-4942
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Ramesh Shrestha, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Holly M. Smith,
27 Senior Litigation Counsel; Remi Da
28 Rocha-Afodu, Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Geljen Sherpa, a native and citizen of Nepal, seeks
6 review of a November 4, 2011, decision of the BIA denying
7 his motion to reopen. In re Geljen Sherpa, No. A099 928 380
8 (B.I.A. Nov. 4, 2011). We assume the parties’ familiarity
9 with the underlying facts and procedural history of this
10 case.
11 We review the BIA’s denial of Sherpa’s motion to reopen
12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). An alien may file only one
14 motion to reopen and must do so within 90 days of the
15 agency’s final administrative decision. 8 U.S.C.
16 § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). Although
17 Sherpa’s motion was indisputably untimely because it was
18 filed more than two years after the agency’s final order of
19 removal, there is no time limitation if the motion is “based
20 on changed country conditions arising in the country of
21 nationality or the country to which removal has been
22 ordered, if such evidence is material and was not available
23 and would not have been discovered or presented at the
2
1 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
2 also 8 C.F.R. § 1003.2(c)(3)(ii).
3 We find no error in the BIA’s conclusion that Sherpa
4 failed to demonstrate materially changed conditions that
5 would excuse the untimely filing, as the record evidence did
6 not indicate a change in conditions in Nepal, but rather
7 reflected a continuation of instability caused by the
8 Maoists, which existed at the time of Sherpa’s merits
9 hearing. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
10 § 1003.2(c)(3)(ii); Matter of S-Y-G-, 24 I&N Dec. 247, 253
11 (BIA 2007) (noting that in evaluating evidence of changed
12 country conditions, the BIA “compare[s] the evidence of
13 country conditions submitted with the motion to those that
14 existed at the time of the merits hearing below”); see also
15 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where
16 there are two permissible views of the evidence, the
17 factfinder’s choice between them cannot be clearly
18 erroneous.”).
19 Nor did the BIA abuse its discretion in declining to
20 give probative weight to Sherpa’s documents submitted in
21 support of his motion, as the IJ had questioned Sherpa’s
22 credibility in the underlying proceedings and the documents
3
1 were not authenticated by any means. See Zheng v. Gonzales,
2 500 F.3d 143,146-49 (2d Cir. 2007) (relying on the doctrine
3 of falsus in uno, falsus in omnibus to conclude that the
4 agency may decline to credit documentary evidence submitted
5 with a motion to reopen by an alien who was found not
6 credible in the underlying proceeding); Xiao Ji Chen v. U.S.
7 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding
8 that the weight afforded to the applicant’s evidence in
9 immigration proceedings lies largely within the discretion
10 of the agency); Cao He Lin v. U.S. Dep’t of Justice, 428
11 F.3d 391, 404 (2d Cir. 2005).
12 Accordingly, the BIA did not abuse its discretion in
13 denying Sherpa’s motion to reopen. See 8 U.S.C.
14 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii); see also Jian
15 Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2006).
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot. Any pending request for
21
22
4
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2) and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
5