Osei v. Holder , 551 F. App'x 599 ( 2014 )

12-3053
Osei v. Holder
BIA
A073 190 398
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 13th day of January, two thousand fourteen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
DENNY CHIN,
Circuit Judges.
_____________________________________
JOANA OSEI,
Petitioner,
v. 12-3053
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Judy Resnick, Far Rockaway, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Terri J. Scadron,
Assistant Director; Greg D. Mack,
Senior Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Joana Osei, a native and citizen of Ghana,
seeks review of the July 27, 2012, decision of the BIA
denying her motion to reopen. In re Joana Osei, No. A073
190 398 (B.I.A. July 27, 2012). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.
The BIA’s denial of Osei’s motion to reopen as untimely
was not an abuse of discretion. See Kaur v. BIA, 413 F.3d
232, 233 (2d Cir. 2005) (per curiam). An alien may file one
motion to reopen, generally no later than 90 days after the
date on which the final administrative decision was rendered
in the proceedings sought to be reopened. 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). There is
no dispute that Osei’s 2012 motion was untimely, as the
final administrative order was issued in 1998. Although the
agency may equitably toll the time limitation imposed on
motions to reopen if an alien demonstrates ineffective
assistance of counsel, see Iavorski v. INS, 232 F.3d 124,
135 (2d Cir. 2000), Osei does not challenge the BIA’s
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finding that she failed to meet the requirements for such a
claim. She also fails to meaningfully challenge the BIA’s
finding that she did not demonstrate a material change in
country conditions, which may also render the time
limitation imposed on motions to reopen inapplicable. See
8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
§ 1229a(c)(7)(C)(ii). Accordingly, that argument is waived.
See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545
n.7 (2d Cir. 2005).
Even considering Osei’s vague argument that she
established changed conditions in Ghana, she fails to
demonstrate that the BIA abused its discretion in denying
her motion. Osei argued to the BIA that: (1) political
violence and violence towards women had increased in Ghana;
and (2) her children would suffer in Ghana because they are
unfamiliar with the country and her daughter would be
subjected to female genital mutilation (“FGM”). The BIA
reasonably found, however, that her fear of harm to her U.S.
citizen daughter, and not to herself, does not serve as a
basis for an asylum claim. See Kone v. Holder, 596 F.3d
141, 153 (2d Cir. 2010) (noting that FGM asylum claims must
be based on some harm to the applicant). Moreover, the BIA
reasonably found that Osei did not present other evidence of
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a material change in conditions because: (1) general civil
strife does not establish a basis for relief, see Melgar de
Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999); and
(2) regarding violence against women, the 2010 U.S. State
Department Human Rights Report on Ghana states that domestic
violence “continued to be a problem,” and the only pre-
hearing evidence on record, a 1997 State Department Profile
of Asylum Claims, does not discuss the treatment of women
not subject to FGM, see 8 C.F.R. § 1003.2(c)(1); Norani v.
Gonzales, 451 F.3d 292, 294 & n.3 (2d Cir. 2006) (looking to
the date on which the IJ closed the record as the date
before which the evidence must have been unavailable,
undiscoverable, or unpresentable). Because Osei failed to
demonstrate a material change in country conditions, the BIA
did not abuse its discretion in denying the motion as
untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R.
§ 1003.2(c)(2), (3)(ii).
Contrary to Osei’s argument, the BIA was not required
to address her prima facie eligibility for relief, because
the timeliness issue was dispositive of the motion to
reopen. See 8 C.F.R. §§ 1003.2(c)(1)-(2). To the extent
Osei challenges the immigration judge’s decision declining
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to rescind her in absentia order, we lack jurisdiction to
consider the BIA’s affirmance of that decision, rendered in
April 2002. See 8 U.S.C. § 1252(b) (requiring petitions for
review to be based on one decision and filed with the Court
within 30 days of that decision). And, to the extent Osei
requested recission of the in absentia order in her motion
to reopen, that request was untimely, see 8 C.F.R.
§ 1003.23(b)(4)(iii)(A)(1), and, as previously noted, she
does not now challenge the BIA’s determination that she
failed to meet the requirements for tolling the time based
on ineffective assistance of counsel.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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