Herrera-Molina v. Holder ( 2012 )


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  •          11-1117-ag
    Herrera-Molina v. Holder
    BIA
    A027 085 434
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    AMENDED 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 Daniel Patrick Moynihan
    3       United States Courthouse, 500 Pearl Street, in the City of
    4       New York, on the 9th day of February, two thousand twelve.
    5
    6       PRESENT:
    7                DENNIS JACOBS,
    8                     Chief Judge,
    9                GUIDO CALABRESI,
    10                GERARD E. LYNCH,
    11                     Circuit Judges.
    12       _______________________________________
    13
    14       WILLIAM HERRERA-MOLINA,
    15                Petitioner,
    16
    17                           v.                                 11-1117-ag
    18                                                              NAC
    19       ERIC H. HOLDER, JR., UNITED STATES
    20       ATTORNEY GENERAL,
    21                Respondent.
    22       ______________________________________
    23
    24       FOR PETITIONER:                     Haroutyun Asatrian, Strasser
    25                                           Asatrian, LLC, Newark, NJ.
    26
    27       FOR RESPONDENT:                     Tony West, Assistant Attorney
    28                                           General; Leslie McKay, Assistant
    29                                           Director; Allison Frayer, Trial
    30                                           Attorney, Office of Immigration
    1                             Litigation, Civil Division, United
    2                             States Department of Justice,
    3                             Washington, D.C.
    4
    5       UPON DUE CONSIDERATION of this petition for review of a
    6   Board of Immigration Appeals (“BIA”) decision, it is hereby
    7   ORDERED, ADJUDGED, AND DECREED that the petition for review
    8   is DENIED.
    9       Petitioner William Herrera-Molina, a native and citizen
    10   of Colombia, seeks review of a February 25, 2011, order of
    11   the BIA denying his motion to reopen.     In re William
    12   Herrera-Molina, No. A027 085 434 (B.I.A. Feb. 25, 2011).       We
    13   assume the parties’ familiarity with the underlying facts
    14   and procedural history in this case.
    15       We review the BIA’s denial of a motion to reopen for
    16   abuse of discretion.     Ali v. Gonzales, 
    448 F.3d 515
    , 517 (2d
    17   Cir. 2006).   When the BIA considers relevant evidence of
    18   country conditions in evaluating a motion to reopen, we
    19   review the BIA’s factual findings under the substantial
    20   evidence standard.     See Jian Hui Shao v. Mukasey, 
    546 F.3d 21
       138, 169 (2d Cir. 2008).
    22       Because Herrera-Molina filed his motion to reopen more
    23   than 90 days after the BIA dismissed his appeal, he was
    24   required to show changed circumstances in Colombia to excuse
    2
    1   the untimely filing.    See 8 U.S.C. § 1229a(c)(7)(C)(i),
    2   (ii).   Herrera-Molina contends that the BIA abused its
    3   discretion by failing to address certain evidence, chiefly
    4   the Defense Cooperation Agreement (“DCA”) between the United
    5   States and Colombia and the fact that his son is an active
    6   U.S. Marine.    However, a reasonable fact-finder would not be
    7   compelled to conclude that the BIA ignored this evidence.
    8   See Wei Guang Wang v. BIA, 
    437 F.3d 270
    , 275 (2d Cir. 2006)
    9   (holding that the BIA is not required to “expressly parse or
    10   refute on the record each individual argument or piece of
    11   evidence offered by the petitioner” as long as it “has given
    12   reasoned consideration to the petition, and made adequate
    13   findings” (internal citations omitted)).
    14       The record supports the BIA’s conclusion that Herrera-
    15   Molina failed to demonstrate a change in country conditions.
    16   The service of Herrera-Molina’s son on active military duty
    17   (in Japan) is a development in the Petitioner’s
    18   circumstances, not in conditions in Colombia.     See Li Yong
    19   Zheng v. U.S. Dep’t of Justice, 
    416 F.3d 129
    , 130-31 (2d
    20   Cir. 2005).    Moreover, the record does not compel the
    21   conclusion that the DCA increased the risk of anti-American
    22   violence in Colombia; the history of such violence in
    3
    1   Colombia is long.   Accordingly, we defer to the BIA’s
    2   conclusion that the DCA did not represent a material change
    3   in conditions.   See Siewe v. Gonzales, 
    480 F.3d 160
    , 167 (2d
    4   Cir. 2007) (“[W]here there are two permissible views of the
    5   evidence, the fact finder’s choice between them cannot be
    6   clearly erroneous.”); Matter of S-Y-G-, 
    24 I. & N. Dec. 247
    ,
    7   257 (BIA 2007) (explaining that an “incremental or
    8   incidental” change does not constitute changed country
    9   conditions for purposes of motions to reopen).
    10       Finally, Herrera-Molina argues that the DCA has changed
    11   conditions in Colombia because it has been criticized by
    12   Venezuela and Nicaragua.1   But nothing in the record compels
    13   the conclusion that tensions between the countries are new,
    14   or effected changed country conditions in Colombia.
    15       Accordingly, the BIA relied on substantial evidence in
    16   finding that Herrera-Molina did not establish changed
    17   country conditions and did not abuse its discretion in
    18   denying his motion to reopen as untimely.   See 8 U.S.C.
    19   § 1229a(c)(7)(C)(i),(ii).
    20
    1
    We do not consider the internet articles Herrera-
    Molina discusses in his brief in support of this argument
    as they are not in the administrative record. See 
    8 U.S.C. § 1252
    (b)(4)(A).
    4
    1        For the foregoing reasons, the petition for review is
    2    DENIED.   As we have completed our review, any stay of
    3    removal that the Court previously granted in this petition
    4    is VACATED, and any pending motion for a stay of removal in
    5    this petition is DISMISSED as moot.    Any pending request for
    6    oral argument in this petition is DENIED in accordance with
    7    Federal Rule of Appellate Procedure 34(a)(2), and Second
    8    Circuit Local Rule 34.1(b).
    9                                 FOR THE COURT:
    10                                 Catherine O’Hagan Wolfe, Clerk
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