Filed: Jul. 01, 2015
Latest Update: Mar. 02, 2020
Summary: 13-3515 Barry v Lynch BIA Laforest, IJ A095 473 566 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 NOT
Summary: 13-3515 Barry v Lynch BIA Laforest, IJ A095 473 566 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 NOTA..
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13-3515
Barry v Lynch
BIA
Laforest, IJ
A095 473 566
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 1st day of July, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PIERRE N. LEVAL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 ADAMA DIAN BARRY,
14 Petitioner,
15
16 v. 13-3515
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,1
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Theodore Vialet, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant
26 Attorney General; Ernesto H.
1 - Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Loretta E. Lynch is automatically substituted for former Attorney General Eric
H. Holder, Jr.
1 Molina, Jr., Assistant Director;
2 Tracey N. McDonald, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of
5 Justice, Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 Petitioner Adama Dian Barry, a native and citizen of
12 Guinea, seeks review of a September 4, 2013, decision of the
13 BIA affirming a June 6, 2012, decision of an Immigration Judge
14 (“IJ”), denying Barry’s motion to reopen. In re Adama Dian
15 Barry, No. A095 473 566 (B.I.A. Sept. 4, 2013), aff’g No. A095
16 473 566 (Immig. Ct. N.Y. City June 6, 2012). We assume the
17 parties’ familiarity with the underlying facts and procedural
18 history in this case.
19 Under the circumstances of this case, we have reviewed the
20 decisions of both the IJ and the BIA “for the sake of
21 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
22 524, 528 (2d Cir. 2006). We review the agency’s denial of a
23 motion to reopen for abuse of discretion, mindful of the Supreme
24 Court’s admonition that such motions are “disfavored.” Ali v.
2
1 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
2 Doherty,
502 U.S. 314, 322-23 (1992)). An alien seeking to
3 reopen proceedings may file one motion to reopen no later than
4 90 days after the date on which the final administrative
5 decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
6 § 1003.2(c)(2). There is no dispute that Barry’s 2012 motion
7 was untimely, as the agency’s final administrative decision was
8 issued in 2004.
9 The time limitation may be excused if the motion is “based
10 on changed country conditions arising in the country of
11 nationality . . . if such evidence is material and was not
12 available and could not have been discovered or presented at
13 the previous hearing.” 8 C.F.R.§ 1003.23(b)(4)(i); see also
14 8 U.S.C. § 1229a(c)(7)(C)(ii). In addition, ineffective
15 assistance of counsel may equitably toll the filing deadline.
16 Rashid v. Mukasey,
533 F.3d 127, 130-31 (2d Cir. 2008). Here,
17 the BIA’s denial of Barry’s motion to reopen as untimely was
18 not an abuse of discretion. Kaur v. BIA,
413 F.3d 232, 233 (2d
19 Cir. 2005).
20
21
3
1 I. Ineffective Assistance
2 Barry claims that the filing deadline for her motion to
3 reopen should be tolled to accommodate her claim of ineffective
4 assistance. While a showing of ineffective assistance may
5 equitably toll the filing deadline for a motion to reopen, an
6 alien must demonstrate “due diligence” in pursuing her claim
7 during “both the period of time before the ineffective
8 assistance of counsel was or should have been discovered and
9 the period from that point until the motion to reopen is filed.”
10 Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008); see also
11 Cekic v. INS,
435 F.3d 167, 170 (2d Cir. 2006). In considering
12 whether a petitioner exercised due diligence, “there is no
13 period of time which we can say is per se unreasonable, and,
14 therefore, disqualifies a petitioner from equitable tolling–
15 or, for that matter, any period of time that is per se
16 reasonable.” Jian Hua Wang v. BIA,
508 F.3d 710, 715 (2d Cir.
17 2007).
18 The agency did not abuse its discretion in finding that,
19 even assuming Barry’s prior counsel was ineffective, she failed
20 to demonstrate due diligence in the eight years between the
21 BIA’s dismissal of her appeal as untimely and the filing of her
4
1 motion to reopen. Barry admits that she knew her appeal was
2 dismissed, yet still waited years to file a complaint and retain
3 new counsel. A delay as short as 14 months may constitute lack
4 of due diligence. See Rashid, 533 F.3d at 132.
5 Furthermore, the agency did not abuse its discretion in
6 concluding that Barry failed exercise due diligence regarding
7 her former counsel’s failure to file a motion to reopen based
8 on changes in asylum law in 2008. The interval between the date
9 Barry spoke with her former counsel about filing a motion to
10 reopen and the date she began to pursue an ineffective
11 assistance claim is unclear, but even based on the most liberal
12 timeline the record suggests, Barry did not show due diligence.
13 II. Changed Country Conditions
14 Barry argues that under the current Guinean
15 administration, she is in danger of persecution by “military
16 and cultural forces” because she is ethnically Fulani. When
17 the BIA considers relevant evidence of country conditions in
18 evaluating a motion to reopen, we review those factual findings
19 under the substantial evidence standard. Jian Hui Shao v.
20 Mukasey,
546 F.3d 138, 169 (2d Cir. 2008). Here, substantial
21 evidence supports the agency’s finding that Barry did not
5
1 establish materially changed conditions in Guinea regarding
2 treatment of Fulanis.
3 Barry presented no evidence at all regarding the treatment
4 of Fulanis in Guinea at the time of her original merits hearing.
5 See Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006); Matter
6 of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007). The current country
7 conditions evidence does not suggest that circumstances have
8 worsened for Fulanis since the election of President Conde.
9 The 2010 U.S. State Department Report reflects significant
10 ethnic tensions in Guinea, but it does not establish that the
11 current administration persecutes Fulanis. Instead, it
12 primarily describes fighting that occurred between ethnic
13 groups immediately following the Conde election.
14 Barry also claims that conditions in Guinea have changed
15 with regard to treatment of those who opposed forced marriages
16 and FGM. She did not raise this claim before the agency,
17 however, and the Government noted her failure to exhaust.
18 Accordingly, we cannot address it here. Lin Zhong v. U.S. Dep’t
19 of Justice,
480 F.3d 104, 119-20 (2d Cir. 2007).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
6
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition
3 is DISMISSED as moot. Any pending request for oral argument
4 in this petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O=Hagan Wolfe, Clerk
7
