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   

, 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


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 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


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 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


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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




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