Filed: Jul. 07, 2020
Latest Update: Jul. 07, 2020
Summary: 18-1189 Diallo v. Barr BIA A095 837 900 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 “SUMMA
Summary: 18-1189 Diallo v. Barr BIA A095 837 900 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 “SUMMAR..
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18-1189
Diallo v. Barr
BIA
A095 837 900
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 7th day of July, two thousand twenty.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 ABDOULAYE DIALLO,
14 Petitioner,
15
16 v. 18-1189
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Abdoulaye Diallo, pro se,
24 Brooklyn, NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
27 General; Anthony C. Payne,
28 Assistant Director; Colette J.
29 Winston, 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 Abdoulaye Diallo, a native and citizen of
6 Guinea, seeks review of an April 6, 2018, decision of the BIA
7 denying his motion to reopen. In re Abdoulaye Diallo, No.
8 A095 837 900 (B.I.A. April 6, 2018). We assume the parties’
9 familiarity with the underlying facts and procedural history.
10 We review a denial of a motion to reopen for abuse of
11 discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–
12 69 (2d Cir. 2008). When the agency considers relevant
13 evidence of country conditions in evaluating a motion to
14 reopen, we review its factual findings under the substantial
15 evidence standard.
Id. at 169.
16 An alien seeking to reopen may file one motion to reopen
17 no later than 90 days after the final administrative decision.
18 See 8 U.S.C. § 1229a(c)(7)(A), (C)(i). However, the time
19 limitation does not apply if the motion is filed in order to
20 apply for asylum “based on changed country conditions arising
21 in the country of nationality or the country to which removal
2
1 has been ordered, if such evidence is material and was not
2 available and would not have been discovered or presented at
3 the previous hearing.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
4 also 8 C.F.R. § 1003.2(c)(3)(ii). It is undisputed that
5 Diallo’s motion was time barred because he filed it 13 years
6 after his removal order.
7 The BIA did not err in finding that Diallo failed to
8 establish a material change in conditions in Guinea as needed
9 to excuse the time limitation. “In determining whether
10 evidence accompanying a motion to reopen demonstrates a
11 material change in country conditions that would justify
12 reopening, [the BIA] compare[s] the evidence of country
13 conditions submitted with the motion to those that existed at
14 the time of the merits hearing below.” In re S-Y-G-, 24 I.
15 & N. Dec. 247, 253 (B.I.A. 2007). As the BIA found, the
16 evidence demonstrates that political and ethnic tensions in
17 Guinea have existed since Diallo’s 2003 hearing. Id. at 257
18 (“Change that is incremental or incidental does not meet the
19 regulatory requirements for late motions.”); In re J-J-, 21
20 I. & N. Dec. 976, 981 (BIA 1997) (alien seeking reopening
21 based on changed country conditions must show that the change
3
1 will materially affect the basis of his asylum claim).
2 Diallo’s assertion that he joined a new political party is
3 insufficient to excuse his untimely filing. See Wei Guang
4 Wang v. BIA, 437 F.3d 270, 273 (2d Cir. 2006) (holding that
5 changed personal circumstances do not fall within the changed
6 country conditions exception to reopening).
7 Further, the BIA did not err in declining to credit
8 Diallo’s and his wife’s statements that he had changed his
9 political affiliation and been detained and assaulted on
10 account of that change. The BIA reasonably relied on the
11 underlying determination that Diallo was not credible as to
12 a prior claim that he was detained and tortured as a member
13 of a different political group (the party now in power in
14 Guinea), and we generally defer to the weight that the agency
15 gives to statements, particularly those of interested
16 parties. See Qin Wen Zheng v. Gonzales,
500 F.3d 143, 147–
17 49 (2d Cir. 2007) (holding that the agency may decline to
18 credit uncorroborated individualized evidence submitted with
19 a motion to reopen by an alien who was found not credible in
20 the underlying proceeding); Y.C. v. Holder,
741 F.3d 324,
21 332, 334 (2d Cir. 2013) (deferring to agency’s decisions
4
1 regarding the weight of evidence and finding no error in
2 decision not to credit spouse’s letter from China).
3 Because the BIA reasonably concluded that Diallo failed
4 to demonstrate a material change in conditions in Guinea, it
5 did not abuse its discretion in denying his motion as
6 untimely. See 8 U.S.C. § 1229a(c)(7)(C).
7 For the foregoing reasons, the petition for review is
8 DENIED. All pending motions and applications are DENIED and
9 stays VACATED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe,
12 Clerk of Court
5
