Barry v. Holder

14-939 Barry v. Holder BIA Burr, IJ A073 594 961 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 TO 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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 24th day of April, two thousand fifteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 GUIDO CALABRESI, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 MOHAMED Y. BARRY, 14 Petitioner, 15 16 v. 14-939 17 NAC 18 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Theodore Vialet, New York, New York. 25 26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant 27 Attorney General; Emily Anne 28 Radford, Assistant Director; Kohsei 29 Ugumori, Senior Litigation Counsel, 1 Office of Immigration Litigation, 2 United States Department of Justice, 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 is 8 DENIED. 9 Petitioner Mohamed Y. Barry seeks review of a March 5, 2014 10 decision of the BIA, affirming a June 28, 2012 order of an 11 Immigration Judge (“IJ”), denying Barry’s motion to reopen. In 12 re Barry, No. A073 594 961 (B.I.A. Mar. 5, 2014), aff’g No. A073 13 594 961 (Immig. Ct. N.Y. City June 28, 2012). We assume the 14 parties’ familiarity with the underlying facts and procedural 15 history in this case. 16 We have reviewed the decisions of both the IJ and the BIA 17 “for the sake of completeness.” Wangchuck v. Dep’t of Homeland 18 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the agency’s 19 denial of a motion to reopen for abuse of discretion, mindful 20 of the Supreme Court’s admonition that such motions are 21 “disfavored.” See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 22 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)). An 23 alien seeking to reopen proceedings must move to reopen no later 2 1 than 90 days after the date on which the final administrative 2 decision was rendered. 8 U.S.C. § 1229a(c)(7)(A), (C); 8 3 C.F.R. 4 § 1003.2(c)(2). There is no dispute that Barry’s 2012 motion 5 to reopen was untimely because the agency’s order of removal 6 became final in 1996, sixteen years earlier. 7 The time limitation does not apply, however, to motions to 8 reopen to apply for asylum or withholding of removal if they 9 are “based on changed country conditions arising in the country 10 of nationality or the country to which removal has been ordered, 11 if such evidence is material and was not available and would 12 not have been discovered or presented at the previous hearing.” 13 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. 14 § 1003.2(c)(3)(ii). Failure to offer such evidence is, 15 therefore, a proper ground for denial, as is the movant’s 16 failure to establish a prima facie case for the underlying 17 substantive relief sought. INS v. Abudu, 485 U.S. 94, 104-05 18 (1988). 19 The agency did not abuse its discretion in denying Barry’s 20 motion to reopen because it was untimely and did not qualify 21 for any exception to the filing deadline. In his motion, Barry 3 1 presented evidence of changed country conditions in Guinea, his 2 newly-claimed country of nationality. The statute pertaining 3 to the filing deadline for a motion to reopen provides for an 4 exemption if the movant presents evidence “based on changed 5 country conditions arising in the country of nationality or the 6 country to which removal has been ordered,” 8 U.S.C. 7 § 1229a(c)(7)(C)(ii). Barry was ordered removed to 8 Mauritania, not Guinea. The regulations do not encompass a 9 situation in which the alien asserts that conditions have 10 changed in a country to which he is not being removed. See 8 11 C.F.R. § 1003.2(c)(3)(ii). Barry could have moved to reopen 12 on the basis that conditions have changed in Mauritania and 13 presented evidence to that effect, but he did not. Nor does 14 he challenge the agency’s original order of removal to 15 Mauritania, or its failure to reexamine his country of 16 citizenship. Thus, the denial of his motion to reopen as 17 untimely was not an abuse of discretion. 18 Barry also asked the agency to reopen proceedings on 19 humanitarian grounds. The BIA construed this request as a 20 request to exercise its authority to reopen proceedings sua 21 sponte, and declined to do so. We lack jurisdiction to review 4 1 this entirely discretionary determination. Ali, 448 F.3d at 2 518. 3 For the foregoing reasons, the petition for review is 4 DENIED. As we have completed our review, any stay of removal 5 that the Court previously granted in this petition is VACATED, 6 and any pending motion for a stay of removal in this petition 7 is DISMISSED as moot. Any pending request for oral argument 8 in this petition is DENIED in accordance with Federal Rule of 9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 10 34.1(b). 11 FOR THE COURT: 12 Catherine O=Hagan Wolfe, Clerk 5