10-1720-ag
Pelaez Saldarriaga v. Holder
BIA
A098 816 952
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 11th day of July, two thousand eleven.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _______________________________________
12
13 CARLOS FELIPE PELAEZ SALDARRIAGA
14 Petitioner,
15
16 v. 10-1720-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Daniel B. Lundy, Barst Mukamal &
24 Kleiner, LLP, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Richard M. Evans, Assistant
28 Director; Margaret A. O’Donnell,
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United
31 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 Carlos Felipe Pelaez Saldarriaga, a native
6 and citizen of Colombia, seeks review of an April 2, 2010,
7 order of the BIA denying his motion to reopen his removal
8 proceedings. In re Carlos Felipe Pelaez Saldarriaga, No.
9 A098 816 952 (B.I.A. Apr. 2, 2010). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 in this case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
14 Cir. 2006). The BIA denied Pelaez Saldarriaga’s motion to
15 reopen finding that the police report submitted by his
16 father did not constitute material new evidence establishing
17 his prima facie eligibility for relief, because it would not
18 have changed the result of the new proceedings. The BIA has
19 explained that it will not grant a motion to reopen based on
20 evidence that is largely cumulative of evidence previously
21 submitted, because evidence is not material unless “the new
22 evidence offered would likely change the result in the
2
1 case.” Matter of Coelho, 20 I. & N. Dec. 464, 473 (BIA
2 1992); see also 8 C.F.R. § 1003.2(c)(1) (providing that a
3 motion to reopen shall not be granted unless it appears to
4 the BIA that the new evidence to be offered is material).
5 Here, contrary to Pelaez Saldarriaga’s argument, the BIA did
6 not summarily discount his new evidence as unauthenticated
7 as the BIA addressed the substance of the new evidence.
8 When addressing the substance of the new evidence, the BIA
9 did not abuse its discretion in finding that Pelaez
10 Saldarriaga’s father’s 2009 report to the Colombian police,
11 was not material new evidence because it largely repeated
12 similar evidence that the IJ and BIA had previously
13 considered, including a previous report filed in 2001. See
14 Matter of Coelho, 20 I. & N. Dec. at 473.
15 In addition to being cumulative, the police report was
16 not material because it did not give any indication as to
17 the motives of the United Self-Defense Forces of Colombia
18 (“AUC”) in pursuing Pelaez Saldarriaga, and thus did not
19 affect the agency’s previous determination that he did not
20 establish that he would be targeted by the AUC on account of
21 a protected ground. See Ramsameachire v. Ashcroft, 357 F.3d
22 169, 178 (2d Cir. 2004) (explaining that an applicant for
3
1 asylum or withholding of removal must show a nexus between
2 their persecution and the grounds protected under the
3 Immigration and Nationality Act). Contrary to Pelaez
4 Saldarriaga’s argument, the agency explicitly addressed his
5 assertion that he had shown a nexus to a protected ground,
6 as it explicitly found that he did not demonstrate such a
7 nexus. Accordingly, the BIA did not abuse its discretion in
8 denying Pelaez Saldarriaga’s motion to reopen because he
9 failed to provide material new evidence. See 8 C.F.R.
10 § 1003.2(c)(1).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
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