Sherpa v. Holder

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