09-4547-ag
         Soumare v. Holder
                                                                                       BIA
                                                                                   Chase, IJ
                                                                               A079 327 538
                              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 19th day of October, two thousand ten.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                JOSÉ A. CABRANES,
 9                RICHARD C. WESLEY,
10                       Circuit Judges.
11       _______________________________________
12
13       OUSMANE SOUMARE, also known as Ousman
14       Soumare, also known as Ousmane
15       Ramazane, also known as Ousmani
16       Ramazani
17                Petitioner,
18
19                           v.                                 09-4547-ag
20                                                              NAC
21       ERIC H. HOLDER, JR., UNITED STATES
22       ATTORNEY GENERAL,
23                Respondent.
24       ______________________________________
25
26       FOR PETITIONER:               Genet Getachew, Brooklyn, New York.
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; David V. Bernal, Assistant
30                                     Director; Lauren E. Fascett, Trial
31                                     Attorney, Office of Immigration
32                                     Litigation, United States Department
33                                     of Justice, 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 Ousmane Soumare, a claimed native and

 6   citizen of Mauritania, seeks review of the October 6, 2009

 7   order of the BIA denying his motion to reopen his removal

 8   proceedings.   In re Ousmane Soumare, No. A079 327 538

 9   (B.I.A. Oct. 6, 2009).    We assume the parties’ familiarity

10   with the underlying facts and procedural history in this

11   case.

12       The BIA did not abuse its discretion in denying

13   Soumare’s motion to reopen. See Ali v. Gonzales, 

  515, 517 (2d Cir. 2006). “[A] party may file only one motion

15   to reopen deportation or exclusion proceedings . . . and

16   that motion must be filed no later than 90 days after the

17   date on which the final administrative decision was rendered

18   in the proceeding sought to be reopened.”    8 C.F.R.

19   § 1003.2(c)(2).   Indisputably, Soumare’s motion was untimely

20   because he filed it more than two years after the BIA’s

21   final order of removal.    However, the time and number

22   limitations do not apply to a motion to reopen seeking to

23   apply for asylum “based on changed circumstances arising in

24   the country of nationality or in the country to which

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 1   deportation has been ordered, if such evidence is material

 2   and was not available and could not have been discovered or

 3   presented at the previous hearing.”    8 C.F.R.

 4   § 1003.2(c)(3)(ii).

 5       Evidence presented by Soumare of how the 2008 military

 6   takeover in Mauritania caused him to fear persecution due to

 7   his alleged past persecution by the military in Mauritania

 8   would be material only if Soumare had credibly established

 9   his identity.    The BIA thus did not err in relying on the

10   IJ’s prior adverse credibility finding to deny Soumare’s

11   motion to reopen.     See Kaur v. BIA, 

, 233-34 (2d

12   Cir. 2005) (per curiam)(new evidence is not material if a

13   grant of relief would still be precluded due to a prior

14   adverse credibility determination).    Soumare’s contention

15   that his claim of a well-founded fear of future persecution

16   is not precluded by the adverse credibility finding is

17   without merit.    Soumare’s alleged fear of future persecution

18   was dependent on his prior claim that he was a Mauritanian

19   national and had suffered past persecution at the hands of

20   the military, testimony which was previously deemed not

21   credible.   See Paul v. Gonzales, 

, 154 (2d Cir.

22   2006) (“[A]n applicant may prevail on a theory of future

23   persecution despite an IJ's adverse credibility ruling as to

24   past persecution, so long as the factual predicate of the

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 1   applicant's claim of future persecution is independent of

 2   the testimony that the IJ found not to be credible.”)

 3   (emphasis in original).

 4       Soumare’s final contention – that the IJ did not

 5   actually make a credibility finding regarding his identity –

 6   is not properly before us for review.     In the underlying BIA

 7   decision, affirming the IJ’s removal order, the BIA

 8   concluded that Soumare failed to credibly establish his

 9   identity.     Because Soumare did not file a petition for

10   review of that BIA decision, the issue is not properly

11   before this Court. See Alam v. Gonzales, 

, 186

12   (2d Cir. 2006) (noting that, on review of a denial of a

13   motion to reopen, this Court’s “review is limited to the

14   BIA’s decision not to reopen,” and does not involve an

15   assessment of the “merits of the underlying exclusion

16   proceedings”).

17       For the foregoing reasons, the petition for review is

18   DENIED.     As we have completed our review, any pending motion

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

20   Any pending request for oral argument in this petition is

21   DENIED in accordance with Federal Rule of Appellate

22   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

23                                 FOR THE COURT:
24                                 Catherine O’Hagan Wolfe, Clerk
25


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