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

New York, on the 29th 4 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.
2

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. §
3

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.
4

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
5

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