09-4706-ag
Mudiangomba v. Holder
BIA
A095 837 895
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
4 New York, on the 19 th day of November, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 RALPH K. WINTER,
11 Circuit Judges.
12 ______________________________________
13
14 DIEMU JEAN PAUL MUDIANGOMBA, ALSO
15 KNOWN AS JOHN KAPYA PAUL MULUMBA,
16 Petitioner,
17 09-4706-ag
18 v. NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Justin Conlon, Law Offices of Justin
26 Conlon, North Haven, Connecticut.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Leslie McKay, Assistant
30 Director; Kristin K. Edison,
31 Attorney, United States Department
1 of Justice, Office of Immigration
2 Litigation, Civil Division,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner, Diemu Jean Paul Mudiangomba, allegedly a
10 native and citizen of the Democratic Republic of Congo
11 (“DRC”), seeks review of an October 16, 2009, decision of
12 the BIA denying his motion to reopen his removal
13 proceedings. In re Diemu Jean Paul Mudiangomba, No. A095
14 837 895 (B.I.A. Oct. 16, 2009). We assume the parties’
15 familiarity with the underlying facts and procedural history
16 of the case.
17 We review the BIA’s denial of a motion to reopen for
18 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
19 Cir. 2006).
20 After the July 2006 merits hearing, the IJ found that
21 the Petitioner had failed to establish his Congolese
22 identity, which defeated prima facie eligibility for relief.
23 See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
24 (2d Cir. 2006) ( “[A] petitioner’s nationality, or lack of
2
1 nationality, is a threshold question in determining his
2 eligibility for asylum.”) (internal quotation marks
3 omitted). On the motion for rehearing, the BAD did not err
4 in declining to consider Petitioner’s newly submitted
5 identity documents. See INS v. Abudu, 485 U.S. 94, 104-05
6 (1988) (recognizing that in an untimely motion to reopen
7 based on changed country conditions, the movant must submit
8 previously unavailable evidence demonstrating his prima
9 facie eligibility for relief). As the BIA found, and
10 Mudiangomba conceded before the BIA, the identity documents
11 Mudiangomba submitted with his motion to reopen were not
12 previously unavailable. Thus, the BIA reasonably declined
13 to consider those documents in its evaluation of
14 Mudiangomba’s motion to reopen. See id. Accordingly,
15 because Mudiangomba failed to successfully rebut the IJ’s
16 dispositive identity determination and establish his prima
17 facie eligibility for relief, the BIA did not abuse its
18 discretion in denying his motion to reopen.
19 We need not reach Mudiangomba’s arguments regarding the
20 BIA’s determination that he failed to establish materially
21 changed country conditions excusing the time limitation
22 applicable to his motion to reopen.
3
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2) and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
13
4