Sano v. Holder , 495 F. App'x 181 ( 2012 )

11-4172
Sano v. Holder
BIA
A072 435 656
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 10th day of September, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 REENA RAGGI,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 ABRAHAM SORY SANO,
14 Petitioner,
15 11-4172
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, Esq., Yerman &
24 Associates, LLC, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Keith I. McManus,
28 Senior Litigation Counsel; Brendan
29 P. Hogan, Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, 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 Abraham Sory Sano, a native and citizen of
6 Guinea, seeks review of a September 15, 2011, decision of
7 the BIA, denying his motion to reopen his removal
8 proceedings. In re Abraham Sory Sano, No. A072 435 656
9 (B.I.A. Sept. 15, 2011). We assume the parties’ familiarity
10 with the underlying facts and procedural history of the
11 case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
14 (2d Cir. 2006) (per curiam). Here, because Sano’s motion
15 was indisputably time and numerically barred, see 8 U.S.C.
16 § 1229a(c)(7)(A), (C), he was required to establish
17 materially “changed country conditions arising in [his]
18 country of nationality,” id., § 1229a(c)(7)(C)(ii); see also
19 8 C.F.R. § 1003.2(c)(3)(ii).
20 Substantial evidence supports the BIA’s determination
21 that Sano failed to satisfy this standard. See Jian Hui
22 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (holding
2
1 that when the agency explicitly considers relevant evidence
2 of country conditions in evaluating a motion to reopen, this
3 Court reviews the agency’s factual findings for substantial
4 evidence).
5 First, because the evidence Sano submitted in support
6 of his motion did not rebut the immigration judge’s (“IJ”)
7 prior adverse credibility finding, it was not error for the
8 BIA to rely on that finding in declining to afford
9 substantial weight to Sano’s affidavit in support of
10 reopening. See Qin Win Zheng v. Gonzales, 500 F.3d 143,
11 147-48 (2d Cir. 2007) (“The BIA’s use here of the IJ’s
12 unchallenged conclusion that Zheng was not credible in
13 support of its refusal to credit the authenticity of
14 [evidence submitted in support of a motion to reopen] was .
15 . . appropriate.”); accord Kaur v. B.I.A., 413 F.3d 232, 234
16 (2d Cir. 2005) (per curiam). Second, the BIA did not err by
17 affording diminished weight to unsworn statements submitted
18 by Sano’s relatives, who, as the BIA noted, were interested
19 witnesses. See Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec.
20 209, 215 (B.I.A. 2010)(giving diminished weight to letters
21 from relatives that were written by interested witnesses not
22
3
1 subject to cross-examination), abrogated on other grounds by
2 Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
3 And third, consistent with the BIA’s finding, the
4 objective evidence Sano submitted in support of reopening
5 failed to demonstrate materially changed country conditions
6 in Guinea. Among other things, that evidence showed that
7 the violence prior to the 2010 election was instigated by
8 members of both the Malinke and Fulani/Peuhl ethnic groups;
9 government-led security forces were responsible for a
10 considerable portion of the violence and targeted, in
11 particular, members of the Fulani/Peuhl ethnic group; and,
12 following the election, Alpha Conde, a Malinke, was
13 inaugurated president. Taken together, these facts do not
14 demonstrate that members of the Malinke ethnic group, like
15 Sano, are now more susceptible to violence or persecution
16 than during the previous regime. But even assuming that
17 violence against Malinkes persists in Guinea, such
18 conditions would not differ materially from those Sano
19 described in his original asylum application. Because
20 substantial evidence supports the BIA’s country conditions
21 finding, we do not address its alternative finding regarding
22 relocation.
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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