Cortez-Arevalo v. Holder , 470 F. App'x 56 ( 2012 )

11-2253-ag
Cortez-Arevalo v. Holder
BIA
A070 950 713
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.
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 29th day of May, two thousand twelve.
5
6 PRESENT:
7 ROBERT D. SACK,
8 REENA RAGGI,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 NOHEMI CORTEZ-AREVALO,
14 Petitioner,
15
16 v. 11-2253-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: H. Raymond Fasano, Youman, Madeo &
24 Fasano, LLP, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Nancy Friedman, Senior
28 Litigation Counsel; Sharon M. Clay,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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 Nohemi Cortez-Arevalo (“Cortez”), a native
6 and citizen of Guatemala, seeks review of a May 5, 2011,
7 decision of the BIA denying her motion to reconsider and/or
8 reopen her removal proceedings. In re Nohemi
9 Cortez-Arevalo, No. A070 950 713 (B.I.A. May 5, 2011). We
10 assume the parties’ familiarity with the underlying facts
11 and procedural history of this case.
12 The sole issue presented by this petition is whether
13 the BIA failed to properly analyze Cortez’s claim that
14 Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010), constitutes
15 a change in law justifying reconsideration of the BIA’s
16 January 26, 2011 decision. In order to demonstrate
17 entitlement to reconsideration based on a change in law, the
18 movant “must show how [the] change in law materially affects
19 [the] prior decision.” Matter of O-S-G, 24 I. & N. Dec. 56,
20 58 (B.I.A. 2006). Because the BIA correctly determined that
21 the Ninth Circuit’s decision in Perdomo is not binding on
22 the Second Circuit, see Matter of Anselmo, 20 I. & N. Dec.
23 25, 31 (B.I.A. 1989), and, thus, did not materially affect
2
1 its January 26, 2011 decision, the BIA did not abuse its
2 discretion in denying reconsideration. See Ke Zhen Zhao v.
3 U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DENIED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
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