09-5214-ag
Badiaga v. Holder
BIA
A075 838 849
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 25th day of February, two thousand eleven.
PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
DJEIDI BADIAGA,
Petitioner,
v. 09-5214-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Theodore Vialet, New York, NY
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri J. Scadron, Assistant
Director; Genevieve Holm, Attorney,
Office of Immigration Litigation,
Civil Division, United States
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Djeidi Badiaga, a native and citizen of the Republic of
the Congo (“Congo”), seeks review of a November 23, 2009,
order of the BIA denying his motion to reopen. In re
Badiaga, No. A075 838 849 (B.I.A. Nov. 23, 2009). We assume
the parties’ familiarity with the underlying facts and
procedural history of this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion, mindful of the Supreme Court’s
admonition that such motions are “disfavored.” Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
Doherty, 502 U.S. 314, 322-23 (1992)) (internal quotation
marks omitted).
It is beyond dispute that Badiaga’s motion to reopen
was untimely and number-barred because it was filed more
than six years after the BIA’s dismissal of Badiaga’s appeal
of his removal order, and because Badiaga previously filed a
motion to reopen in December 2002. See 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Badiaga
2
contends, however, that the time and number limitations do
not apply to his motion to reopen because it was “based on
changed circumstances arising in the country of nationality”
and the evidence he submitted “is material and was not
available and could not have been discovered or presented at
the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
In fact, substantial evidence supports the BIA’s
determination that Badiaga failed to adduce material
evidence of changed country conditions in the Congo
sufficient to support a prima facie asylum claim. The BIA
reasonably found that Badiaga’s affidavit and supporting
letters from friends lacked specificity, particularly with
regard to the alleged mistreatment of individuals who fled
the Congo before the civil war and were repatriated. See
Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 114 (2d
Cir. 2005); Guan Shan Liao v. U.S. Dep’t of Justice, 293
F.3d 61, 70 (2d Cir. 2002). Further, as Badiaga concedes,
the submitted 2008 U.S. State Department Report on Human
Rights in the Congo contained no discussion of the situation
that Badiaga fears. Accordingly, the agency reasonably
determined that the Report failed to provide support for
Badiaga’s claim. See generally Jian Xing Huang v. INS, 421
3
F.3d 125, 129 (2d Cir. 2005) (observing that the agency is
entitled to rely on country conditions report so long as it
does not overlook any contradictory evidence presented by
petitioner). In sum, because the record supports the BIA’s
determination that the evidence offered by Badiaga was
insufficient to establish changed country conditions
excusing the time and numerical limits for filing his
motion, see Jian Hui Shao v. Mukasey, 546 F.3d 138, 154-55
(2d Cir. 2008), we identify no abuse of discretion in the
agency’s decision.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4