11-4806
Oluwale v. Holder
BIA
A072 582 335
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of May, two thousand thirteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _________________________________________
12
13 JOHNSON KELECHI OLUWALE,
14 Petitioner,
15
16 v. 11-4806
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Judith L. Wood, Los Angeles,
24 California.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Holly M. Smith,
28 Senior Litigation Counsel; Remi Da
29 Rocha-Afodu, Attorney, Office of
30 Immigration Litigation, 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 Johnson Kelechi Oluwale, a native and
6 citizen of Nigeria, seeks review of a November 4, 2011,
7 decision of the BIA denying his motion to reopen. In re
8 Johnson Kelechi Oluwale, No. A072 582 335 (B.I.A. Nov. 4,
9 2011). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 The BIA’s denial of Oluwale’s motion to reopen as
12 untimely was not an abuse of discretion. See Kaur v. BIA,
13 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An alien may
14 file one motion to reopen, generally no later than 90 days
15 after the date on which the final administrative decision
16 was rendered in the proceedings sought to be reopened.
17 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
18 There is no dispute that Oluwale’s 2011 motion was untimely,
19 as the final administrative order was issued in 2004. See
20 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The
21 time limitation does not apply to a motion to reopen if it
22 is “based on changed circumstances arising in the country of
2
1 nationality or in the country to which deportation has been
2 ordered, if such evidence is material and was not available
3 and could not have been discovered or presented at the
4 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also
5 8 U.S.C. § 1229a(c)(7)(C)(ii). However, we find no basis to
6 reverse in the BIA’s conclusion that Oluwale failed to
7 establish a material change in conditions arising in Nigeria
8 since the time of his 2003 merits hearing.
9 Oluwale argues that he demonstrated that there was a
10 material increase in sectarian violence following the 2011
11 election of Christian presidential candidate Goodluck
12 Jonathan. Although two articles he submitted state that
13 Muslim factions killed hundreds of Christians and destroyed
14 Christian property and churches after the election, the 2009
15 report by the United States Commission on International
16 Religious Freedom (“USCIRF”) notes that there has been a
17 “long line of violent incidents” that began in 1999 and has
18 resulted in at least 12,000 deaths due to sectarian
19 violence. The same USCIRF report designated Nigeria a
20 country of particular concern only as of 2009, but specified
21 that this new development resulted from impatience with the
22 Nigerian government’s inaction rather than, as Oluwale
3
1 argues, an increase in the “ongoing” sectarian violence.
2 Oluwale’s asylum application reflects that ongoing violence,
3 as it alleges that Muslims killed his Christian parents in
4 1992. Based on the reports and Oluwale’s own allegations,
5 the agency could reasonably find that Oluwale did not
6 demonstrate a material change in the treatment of Christians
7 in Nigeria since the time of his merits hearing in 2003.
8 See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
9 § 1003.2(c)(3)(ii); Matter of S-Y-G-, 24 I. & N. Dec. 247,
10 253 (BIA 2007) (“In determining whether evidence
11 accompanying a motion to reopen demonstrates a material
12 change in country conditions that would justify reopening,
13 [the agency] compare[s] the evidence of country conditions
14 submitted with the motion to those that existed at the time
15 of the merits hearing below.”).
16 Because the evidence Oluwale submitted was insufficient
17 to require a finding of a material change in country
18 conditions, the agency did not abuse its discretion in
19 denying his motion to reopen as untimely. See 8 U.S.C.
20 § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
4
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
5