12-4068
Diallo v. Holder
BIA
A073 673 978
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 16th day of October, two thousand thirteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 KENDA DIALLO, AKA KENDA DJALLO, AKA
14 BHA FRIA,
15 Petitioner,
16
17 v. 12-4068
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Theodore Vialet, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; David V. Bernal,
28 Assistant Director; Anthony C.
29 Payne, Senior Litigation Counsel,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
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 Petitioner Kenda Diallo, a native and citizen of
6 Guinea, seeks review of a September 24, 2012, decision of
7 the BIA denying his motion to reopen his removal
8 proceedings. In re Kenda Diallo, No. A073 673 978 (B.I.A.
9 Sept. 24, 2012). We assume the parties’ familiarity with
10 the underlying facts and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). An alien seeking to reopen
14 proceedings is required to file a motion to reopen no later
15 than 90 days after the date on which the final
16 administrative decision was rendered. See 8 U.S.C.
17 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
18 dispute that Diallo’s motion to reopen, filed in 2012, was
19 untimely, because the BIA issued a final order of removal in
20 Diallo’s case in 2008.
21 Diallo contends, however, that he has established
22 materially changed country conditions excusing his untimely
23 motion to reopen, namely, that the government of Guinea is
2
1 aware of his political activities in the United States, and
2 will persecute him on the basis of those activities and his
3 ethnicity if he is removed to Guinea. See 8 U.S.C.
4 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The BIA
5 did not abuse its discretion in finding that Diallo did not
6 warrant reopening on this basis. It gave “reasoned
7 consideration” to Diallo’s country conditions evidence,
8 including U.S. Department of State reports, and it
9 reasonably found that although the reports indicated
10 violence against opposition party members actively engaged
11 in protests against the government, Diallo did not establish
12 that the government had persecuted individuals based on
13 their political activities outside the country. See Wei
14 Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006); see
15 also Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.
16 2008).
17 Although Diallo argues that the evidence supports
18 drawing inferences in his favor, we review only whether a
19 reasonable adjudicator would be compelled to make contrary
20 findings in this case, and conclude that the BIA’s findings
21 are supported by substantial evidence. See 8 U.S.C.
22 § 1252(b)(4)(B); see also Castro v. Holder, 597 F.3d 93, 99
23 (2d Cir. 2010).
3
1 Diallo also argues that if removed to Guinea, he would
2 continue to participate in activities with an opposition
3 political party and be persecuted on the basis of his future
4 activities. This argument was not exhausted before the
5 agency, and we decline to consider it. See Lin Zhong v.
6 U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any pending motion
9 for a stay of removal in this petition is DISMISSED as moot.
10 Any pending request for oral argument in this petition is
11 DENIED in accordance with Federal Rule of Appellate
12 Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
4