Sherpa v. Holder

09-4331-ag Sherpa v. Holder BIA A098 228 768 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 New 4 York, on the 23 rd day of September, two thousand ten. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 GUIDO CALABRESI, 10 DEBRA ANN LIVINGSTON, 11 Circuit Judges. 12 _______________________________________ 13 14 KANCHHI MAYA SHERPA A.K.A. KANCHI MAYA, 15 Petitioner, 16 17 v. 09-4331-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _______________________________________ 23 24 FOR PETITIONER: Khagendra Gharti-Chhetry, New York, 25 New York. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney General; 28 Jennifer J. Keeney, Senior Litigation 29 Counsel; Karen L. Melnik, Trial 30 Attorney, Office of Immigration 31 Litigation, United States Department 1 of Justice, Washington, D.C. 2 UPON DUE CONSIDERATION of this petition for review of a 3 decision of the Board of Immigration Appeals (“BIA”), it is 4 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 5 review is DENIED. 6 Kanchhi Maya Sherpa, a native and citizen of Nepal, 7 seeks review of a September 23, 2009, order of the BIA 8 denying her third motion to reopen. In re Kanchhi Maya 9 Sherpa, No. A098 228 768 (B.I.A. Sept. 23, 2009). We assume 10 the parties’ familiarity with the underlying facts and 11 procedural history of this case. 12 We review the BIA’s denial of a motion to reopen for 13 abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d 14 Cir. 2005) (per curiam). An alien may only file one motion 15 to reopen and must do so within 90 days of the final 16 administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. 17 § 1003.2(c)(2). However, there is no time or numerical 18 limitations if the alien establishes materially “changed 19 country conditions arising in the country of nationality.” 20 8 U.S.C. § 1229a(c)(7) (C)(ii); see also 8 C.F.R. 21 § 1003.2(c)(3)(ii). Here, Sherpa’s third motion to reopen 22 was indisputably untimely and number-barred. The BIA did 23 not abuse its discretion in finding that she failed to 24 establish changed country conditions excusing her untimely 2 1 filing. 2 Contrary to Sherpa’s argument, the BIA properly relied 3 on the immigration judge’s underlying adverse credibility 4 determination to reject her documentary evidence as 5 insufficient to establish changed country conditions. See 6 Qin Wen Zheng v. Gonzales, 500 F.3d 142, 147-48 (2d Cir. 7 2007) . Indeed, the BIA reasonably applied the doctrine 8 falsus in uno, falsus in omnibus, in rejecting Sherpa’s 9 unauthenticated and unreliable affidavits. See Siewe v. 10 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) . Moreover, the 11 record does not indicate that the BIA failed to consider any 12 of the evidence Sherpa submitted. See Xiao Ji Chen v. U.S. 13 Dep’t of Justice, 471 F.3d 315, 338 (2d Cir. 2006). 14 For the foregoing reasons, the petition for review is 15 DENIED. As we have completed our review, any stay of 16 removal that the Court previously granted in this petition 17 is VACATED, and any pending motion for a stay of removal in 18 this petition is DISMISSED as moot. Any pending request for 19 oral argument in this petition is DENIED in accordance with 20 Federal Rule of Appellate Procedure 34(a)(2), and Second 21 Circuit Local Rule 34.1(b). 22 FOR THE COURT: 23 Catherine O’Hagan Wolfe, Clerk 3