09-5214-ag
    Badiaga v. Holder
                                                                                  BIA
                                                                          A075 838 849
                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 25th day of February, two thousand eleven.

    PRESENT:
             GUIDO CALABRESI,
             REENA RAGGI,
             GERARD E. LYNCH,
                Circuit Judges.
    _____________________________________

    DJEIDI BADIAGA,
             Petitioner,

                        v.                                 09-5214-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Theodore Vialet, New York, NY

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Terri J. Scadron, Assistant
                                  Director; Genevieve Holm, Attorney,
                                  Office of Immigration Litigation,
                                  Civil Division, United States
                                  Department of Justice, Washington,
                                  D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

    Djeidi Badiaga, a native and citizen of the Republic of

the Congo (“Congo”), seeks review of a November 23, 2009,

order of the BIA denying his motion to reopen.      In re

Badiaga, No. A075 838 849 (B.I.A. Nov. 23, 2009).     We assume

the parties’ familiarity with the underlying facts and

procedural history of this case.

    We review the BIA’s denial of a motion to reopen for

abuse of discretion, mindful of the Supreme Court’s

admonition that such motions are “disfavored.”      Ali v.

Gonzales, 

, 517 (2d Cir. 2006) (citing INS v.

Doherty, 

, 322-23 (1992)) (internal quotation

marks omitted).

    It is beyond dispute that Badiaga’s motion to reopen

was untimely and number-barred because it was filed more

than six years after the BIA’s dismissal of Badiaga’s appeal

of his removal order, and because Badiaga previously filed a

motion to reopen in December 2002.   See 8 U.S.C.

§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).     Badiaga


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contends, however, that the time and number limitations do

not apply to his motion to reopen because it was “based on

changed circumstances arising in the country of nationality”

and the evidence he submitted “is material and was not

available and could not have been discovered or presented at

the previous hearing.”   8 C.F.R. § 1003.2(c)(3)(ii).

    In fact, substantial evidence supports the BIA’s

determination that Badiaga failed to adduce material

evidence of changed country conditions in the Congo

sufficient to support a prima facie asylum claim.     The BIA

reasonably found that Badiaga’s affidavit and supporting

letters from friends lacked specificity, particularly with

regard to the alleged mistreatment of individuals who fled

the Congo before the civil war and were repatriated.     See

Jin Chen v. U.S. Dep’t of Justice, 

, 114 (2d

Cir. 2005); Guan Shan Liao v. U.S. Dep’t of Justice, 

, 70 (2d Cir. 2002).   Further, as Badiaga concedes,

the submitted 2008 U.S. State Department Report on Human

Rights in the Congo contained no discussion of the situation

that Badiaga fears.   Accordingly, the agency reasonably

determined that the Report failed to provide support for

Badiaga’s claim.   See generally Jian Xing Huang v. INS, 421


                              

, 129 (2d Cir. 2005) (observing that the agency is

entitled to rely on country conditions report so long as it

does not overlook any contradictory evidence presented by

petitioner).   In sum, because the record supports the BIA’s

determination that the evidence offered by Badiaga was

insufficient to establish changed country conditions

excusing the time and numerical limits for filing his

motion, see Jian Hui Shao v. Mukasey, 

, 154-55

(2d Cir. 2008), we identify no abuse of discretion in the

agency’s decision.

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot.    Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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