18-1688
     Alam v. Barr
                                                                                   BIA
                                                                           A073 543 677
                         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
 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 17th day of September, two thousand nineteen.
 5
 6   PRESENT:
 7            PETER W. HALL,
 8            JOSEPH F. BIANCO,
 9            MICHAEL H. PARK,
10                 Circuit Judges.
11   _____________________________________
12
13   NURUL ALAM,
14            Petitioner,
15
16                  v.                                           18-1688
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Nurul Alam, pro se, Bronx, NY.
24
25   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
26                                    Attorney General; Janice K.
27                                    Redfern, Senior Litigation
28                                    Counsel; Gerald M. Alexander,
29                                    Trial Attorney, Office of
30                                    Immigration Litigation, United
31                                    States Department of Justice,
32                                    Washington, DC.
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   Nurul   Alam,       a   native   and   citizen   of

6    Bangladesh, seeks review of a May 8, 2018, decision of the

7    BIA denying his third motion to reopen.           In re Nurul Alam,

8    No. A 073 543 677 (B.I.A. May 8, 2018).              We assume the

9    parties’ familiarity with the underlying facts and procedural

10   history in this case.

11       In lieu of filing a brief, the Government moves for

12   summary denial of Alam’s petition for review.           Because Alam

13   has filed his merits brief, however, we treat the Government’s

14   motion as a response to that brief and deny the petition.

15       Alam argues that the BIA erred in not reviewing the legal

16   and factual issues raised in the immigration judge’s adverse

17   credibility determination.    But Alam cannot challenge the

18   agency’s underlying adverse credibility determination at this

19   stage because his petition is timely only as to the BIA’s

20   denial of his motion to reopen.          See Kaur v. BIA, 

  232, 233 (2d Cir. 2005) (noting that we are precluded from
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1    reviewing underlying removal order on petition for review of

2    denial of motion to reopen).

3           To   the     extent    that   Alam     challenges     the     denial   of

4    reopening, his brief reiterates that changed country and

5    personal      conditions      both   excuse     his    untimely     filing    and

6    warrant a grant of asylum.            We review the denial of a motion

7    to reopen for abuse of discretion.                    

undisputed

8    that Alam’s 2017 motion to reopen was untimely and number

9    barred because it was filed more than 14 years after the BIA’s

10   original       decision       affirming       the      adverse      credibility

11   determination and it was his third motion to reopen with the

12   BIA.    See 8 U.S.C. § 1229a(c)(7)(A), (C)(i) (providing that

13   movant may file one motion to reopen and setting 90-day

14   deadline      for    motion    to    reopen);    8 C.F.R.        § 1003.2(c)(2)

15   (same).       However, the time and number limitations do not

16   apply if reopening is sought to apply for asylum “based on

17   changed       country    conditions      arising       in   the    country    of

18   nationality or the country to which removal has been ordered,

19   if such evidence is material and was not available and would

20   not    have    been     discovered     or   presented       at    the   previous


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1    proceedings.”        8 U.S.C.     § 1229a(c)(7)(C)(ii);       see     also

2    8 C.F.R. § 1003.2(c)(3)(ii).

3           The BIA did not abuse its discretion in declining to

4    reopen on the ground that the alleged changed conditions were

5    not material.      See 8 U.S.C. § 1229a(c)(7)(C)(ii).         The record

6    reflects that the BIA acknowledged the alleged conditions—

7    that    political    unrest     endangered      political   leaders    in

8    Bangladesh—but reasonably concluded that those allegations

9    did not meet the high burden for reopening given the prior

10   determination that Alam’s claim of membership in a political

11   opposition party was not credible.              See Qin Weng Zheng v.

12   Gonzales, 

, 147 (2d Cir. 2007) (reasoning that

13   BIA may rely on underlying adverse credibility determination

14   to deny motion to reopen).         Alam made no effort to counter

15   the adverse credibility determination as he did not submit

16   any documentary evidence regarding his political activity,

17   his    purported    criminal    charges,   or    any   of   the   alleged

18   incidents of past persecution.

19          For the foregoing reasons, the petition for review is

20   DENIED.    As we have completed our review, the Government’s

21   motion for summary denial and Alam’s motion for a stay of
                                         4
1   removal are DENIED as moot.       Any pending request for oral

2   argument in this petition is DENIED in accordance with Federal

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

4   Local Rule 34.1(b).

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe,
7                               Clerk of Court




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