Yacoub v. Holder , 448 F. App'x 131 ( 2011 )


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  •          10-3531-ag
    Yacoub v. Holder
    BIA
    A079 076 935
    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 November, two thousand eleven.
    5
    6       PRESENT:
    7                          BARRINGTON D. PARKER,
    8                          RICHARD C. WESLEY,
    9                          RAYMOND J. LOHIER, JR.,
    10                              Circuit Judges.
    11
    12       FOUAD YACOUB,
    13                Petitioner,
    14
    15                          v.                                  10-3531-ag
    16                                                              NAC
    17       ERIC H. HOLDER, JR., UNITED STATES
    18       ATTORNEY GENERAL,
    19                Respondent.
    20       _______________________________________
    21
    22       FOR PETITIONER:                 James A. Welcome, Waterbury,
    23                                       Connecticut.
    24
    25       FOR RESPONDENT:                 Tony West, Assistant Attorney
    26                                       General; Francis W. Fraser, Senior
    27                                       Litigation Counsel; W. Daniel Shieh,
    28                                       Trial Attorney, Office of
    29                                       Immigration Litigation, United
    30                                       States Department of Justice,
    31                                       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 Fouad Yacoub, a native and citizen of Syria,
    6   seeks review of a July 6, 2010, decision of the BIA denying
    7   his motion to reopen his removal proceedings.     In re Fouad
    8   Yacoub, No. A079 076 935 (B.I.A. July 6, 2010).     We assume
    9   the parties’ familiarity with the underlying facts and
    10   procedural history in this case.
    11       We review the BIA’s denial of a motion to reopen for
    12   abuse of discretion.     See Ali v. Gonzales, 
    448 F.3d 515
    , 517
    13   (2d Cir. 2006).    An alien seeking to reopen proceedings is
    14   required to file a motion to reopen no later than 90 days
    15   after the date on which the final administrative decision
    16   was rendered.     See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
    17   § 1003.2(c)(2).    There is no dispute that Yacoub’s motion to
    18   reopen, filed in May 2010, was untimely because the
    19   immigration judge (“IJ”) issued a final order of removal in
    20   August 2004.    See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
    21   § 1003.2(c)(2).
    22       Yacoub contends that changed country conditions excused
    23   the untimeliness of his motion to reopen.     See 
    8 U.S.C. § 2
    1   1229a(c)(7)(C)(ii).     The changed country conditions he
    2   references include increased terrorism and violence against
    3   non-Muslims and westerners in Syria, caused by deteriorating
    4   relations between Syria and the United States.       However, the
    5   BIA’s determination that Yacoub failed to establish a
    6   material change in country conditions is supported by
    7   substantial evidence.     See Jian Hui Shao v. Mukasey, 546
    
    8 F.3d 138
    , 169 (2d Cir. 2008); 8 U.S.C.
    9   § 1252(b)(4)(B).
    10       As noted by the BIA, Yacoub’s country conditions
    11   evidence merely reflects a deterioration of conditions
    12   rather than any fundamental change in circumstances, and
    13   Yocoub fails to cite to a single piece of evidence
    14   purportedly demonstrating a material change in country
    15   conditions in his brief before this Court, see FED. R. APP.
    
    16 P. 28
    (a)(9)(A) (providing that a brief must contain
    17   “appellant’s contentions and the reasons for them, with
    18   citations to the authorities and parts of the record on
    19   which the appellant relies”).       As a result, the record does
    20   not compellingly suggest that the BIA failed to consider any
    21   evidence, and the BIA’s finding, that Yacoub failed to show
    22   a material change in country conditions, is supported by
    23   substantial evidence.     See 8 U.S.C.
    24   § 1252(b)(4)(B), see also Jian Hui Shao, 546 F.3d at 158.
    3
    1       Notwithstanding Yacoub’s argument to the contrary, the
    2   BIA reasonably determined that his purported ability to
    3   adjust his immigration status, on the basis of his
    4   previously approved I-130 Petition, constitutes a change in
    5   personal circumstances rather than a material change in
    6   country conditions in Syria.   See Wei Guang Wang v. BIA, 437
    
    7 F.3d 270
    , 273-74 (2d Cir. 2006).
    8        Yacoub’s argument that the BIA erred by failing to
    9   assess his prima facie eligibility for relief is also
    10   without merit.   A movant’s failure to establish his prima
    11   facie eligibility for the underlying relief sought is an
    12   independent basis on which the BIA may deny a motion to
    13   reopen.   But where, as here, the movant has failed to
    14   demonstrate a material change in country conditions, the BIA
    15   has no independent obligation to consider a movant’s prima
    16   facie showing.   See INS v. Abudu, 
    485 U.S. 94
    , 104-05
    17   (1988).
    18       Lastly, Yacoub argues that the BIA erred in refusing to
    19   reopen his removal proceedings sua sponte.   We lack
    20   jurisdiction to consider this claim because the BIA’s
    21   decision on this issue was “entirely discretionary.” Ali v.
    22   Gonzales, 
    448 F.3d at 518
    ; Cyrus v. Keisler, 
    505 F.3d 197
    ,
    23   202 (2d Cir. 2007).   While we have held remand appropriate
    24   “where the Agency may have declined to exercise its sua
    4
    1   sponte authority because it misperceived the legal
    2   background and thought, incorrectly, that a reopening would
    3   necessarily fail,” Mahmood v. Holder, 
    570 F.3d 466
    , 469 (2d
    4   Cir. 2009), here, there is no indication that the BIA
    5   misperceived any law in declining to exercise its sua sponte
    6   authority, see 
    8 C.F.R. § 1003.2
    (a); In re J-J-, 21 I. & N.
    7   Dec. 976, 976 (B.I.A. 1997).
    8       Because the BIA reasonably concluded that Yacoub did
    9   not demonstrate a material change in country conditions in
    10   Syria, it did not abuse its discretion by denying his motion
    11   to reopen as untimely.
    12   See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii).
    13       For the foregoing reasons, the petition for review is
    14   DENIED.   As we have completed our review, any stay of
    15   removal that the Court previously granted in this petition
    16   is VACATED, and any pending motion for a stay of removal in
    17   this petition is DISMISSED as moot. Any pending request for
    18   oral argument in this petition is DENIED in accordance with
    19   Federal Rule of Appellate Procedure 34(a)(2), and Second
    20   Circuit Local Rule 34.1(b).
    21                                 FOR THE COURT:
    22                                 Catherine O’Hagan Wolfe, Clerk
    5
    

Document Info

Docket Number: 10-3531-ag

Citation Numbers: 448 F. App'x 131

Judges: Lohier, Parker, Raymond, Richard, Wesley

Filed Date: 11/29/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023