11-4907
    Bist v. Holder
                                                                                    BIA
                                                                            A094 813 842
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 10th day of October, two thousand thirteen.

    PRESENT:
             ROSEMARY S. POOLER,
             REENA RAGGI,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    TILAK KALBAHADUR BIST,
             Petitioner,

                     v.                                       11-4907
                                                              NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                Galab B. Dhungana, New York, NY.

    FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
                                   Attorney General; Terri J. Scadron,
                                   Assistant Director; Meadow W. Platt,
                                   Trial Attorney, Office of
                                   Immigration Litigation, United
                                   States Department of Justice,
                                   Washington, DC.
    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Tilak Kalbahadur Bist, a native and citizen

of Nepal, seeks review of the November 8, 2011, order of the

BIA denying his motion to reconsider and reopen.      In re

Tilak Kalbahadur Bist, No. A094 813 842 (B.I.A. Nov. 8,

2011).   We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

    We review the BIA’s denial of Bist’s motion to

reconsider and reopen as untimely for abuse of discretion.

See Kaur v. BIA, 

, 233 (2d Cir. 2005) (per

curiam).     A motion to reconsider must “specify the errors of

fact or law in the [challenged BIA decision] and [] be

supported by pertinent authority.”     See 8 U.S.C.

§ 1229a(c)(6); Ke Zhen Zhao v. Mukasey, 

, 90 (2d

Cir. 2001); 8 C.F.R. § 1003.2(b)(1).

    We find that the BIA did not abuse its discretion here.

Contrary to Bist’s argument that his testimony was

internally consistent and consistent with his supporting

documentation, the BIA did not err in finding that the IJ’s


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adverse credibility determination was supported by the

following inconsistencies: (1) Bist’s testimony that his

wife never had to leave their home, which contradicted his

written statement that Maoists’ threats forced his family to

move and his later testimony that his wife did in fact leave

their Kathmandu home; and (2) Bist’s testimony that Maoists

first approached him in 2005, which contradicted his

relative’s letter which gave the year as 1999.

    The BIA also did not err in finding that Bist failed to

establish that his due process rights were violated because

he did not demonstrate how the translator’s performance

during his removal proceedings prejudiced him.   See Rabiu v.

INS, 

, 882 (2d Cir. 1994) (requiring a showing of

prejudice to establish a due process violation); Matter of

D-R-, 25 I. & N. Dec. 445, 461 (BIA 2011) (holding that an

alien challenging the competency of a translator must show

both that the translator did not perform competently and

that the alien was prejudiced as a result).   Although the

record contains examples of instances where the translator

required extra questions to ascertain Bist’s meaning or

where the translator admitted to being “not very good” at

reading Nepalese, Bist has not identified what, if any,


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testimony was translated erroneously.   Because Bist did not

specify any errors in the BIA’s previous decision, the BIA

did not abuse its discretion in denying Bist’s motion to

reconsider.

    In seeking reopening, Bist offered evidence showing

that the Maoists had gained control of the internal security

and police forces in Nepal.   However, because the evidence

of changed country conditions was related to his claim that

he was subject to persecution in Nepal because of his anti-

Maoist views, a claim which the agency had found to be not

credible, any change in conditions was not material as he

had not demonstrated error in the adverse credibility

determination.*   See 8 C.F.R. § 1003.2(c)(1) (requiring that

the new evidence supporting reopening be material); see also

Qin Wen Zheng v. Gonzales, 

, 146-49 (2d Cir.

2007) (relying on the doctrine falsus in uno, falsus in

omnibus to conclude that the agency does not abuse its

discretion in denying a motion to reopen based on changed

country conditions where there is an underlying adverse


    *
      Bist requests that this Court take judicial notice of
an additional fact relating to country conditions. That
request is denied because judicial review is limited to the
administrative record. See 8 U.S.C. § 1252(b)(4)(A).
                              4
credibility finding).   Accordingly, the BIA did not abuse

its discretion in denying reopening.

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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