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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 29 th** **day of November, two thousand eleven.** 4 5 **PRESENT:** 6 **BARRINGTON D. PARKER,** 7 **RICHARD C. WESLEY,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges**.** 10 11 **FOUAD YACOUB,** 12 Petitioner**,** 13 14 **v. 10-3531-ag** 15 **NAC** 16 **ERIC H. HOLDER, JR., UNITED STATES** 17 **ATTORNEY GENERAL,** 18 Respondent **.** 19

**_______________________________________** 20 21 **FOR PETITIONER: James A. Welcome, Waterbury,** 22 **Connecticut.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Francis W. Fraser, Senior** 26 **Litigation Counsel; W. Daniel Shieh,** 27 **Trial Attorney, Office of** 28 **Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED, that the petition for review 3 is DENIED. 4 Petitioner Fouad Yacoub, a native and citizen of Syria, 5 seeks review of a July 6, 2010, decision of the BIA denying 6 his motion to reopen his removal proceedings. In re Fouad 7 Yacoub, No. A079 076 935 (B.I.A. July 6, 2010). We assume 8 the parties’ familiarity with the underlying facts and 9 procedural history in this case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 12 (2d Cir. 2006). An alien seeking to reopen proceedings is 13 required to file a motion to reopen no later than 90 days 14 after the date on which the final administrative decision 15 was rendered. See8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 16 § 1003.2(c)(2). There is no dispute that Yacoub’s motion to 17 reopen, filed in May 2010, was untimely because the 18 immigration judge (“IJ”) issued a final order of removal in 19 August 2004. See8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 20 § 1003.2(c)(2). 21 Yacoub contends that changed country conditions excused 22 the untimeliness of his motion to reopen. See 8 U.S.C. § 233 1229a(c)(7)(C)(ii). The changed country conditions he 1 references include increased terrorism and violence against 2 non-Muslims and westerners in Syria, caused by deteriorating 3 relations between Syria and the United States. However, the 4 BIA’s determination that Yacoub failed to establish a 5 material change in country conditions is supported by 6 substantial evidence. See Jian Hui Shao v. Mukasey, 546 7 F.3d 138, 169 (2d Cir. 2008); 8 U.S.C. 8 § 1252(b)(4)(B). 9 As noted by the BIA, Yacoub’s country conditions 10 evidence merely reflects a deterioration of conditions 11 rather than any fundamental change in circumstances, and 12 Yocoub fails to cite to a single piece of evidence 13 purportedly demonstrating a material change in country 14 conditions in his brief before this Court, see FED . R. APP . 15

P. 28(a)(9)(A) (providing that a brief must contain 16 “appellant’s contentions and the reasons for them, with 17 citations to the authorities and parts of the record on 18 which the appellant relies”). As a result, the record does 19 not compellingly suggest that the BIA failed to consider any 20 evidence, and the BIA’s finding, that Yacoub failed to show 21 a material change in country conditions, is supported by 22 substantial evidence. See8 U.S.C. 23 § 1252(b)(4)(B), see also Jian Hui Shao , 546 F.3d at 158. 244 Notwithstanding Yacoub’s argument to the contrary, the 1 BIA reasonably determined that his purported ability to 2 adjust his immigration status, on the basis of his 3 previously approved I-130 Petition, constitutes a change in 4 personal circumstances rather than a material change in 5 country conditions in Syria. See Wei Guang Wang v. BIA, 437 6 F.3d 270, 273-74 (2d Cir. 2006). 7 Yacoub’s argument that the BIA erred by failing to 8 assess his prima facie eligibility for relief is also 9 without merit. A movant’s failure to establish his prima 10 facie eligibility for the underlying relief sought is an 11 independent basis on which the BIA may deny a motion to 12 reopen. But where, as here, the movant has failed to 13 demonstrate a material change in country conditions, the BIA 14 has no independent obligation to consider a movant’s prima 15 facie showing. See INS v. Abudu , 485 U.S. 94, 104-05 16 (1988). 17 Lastly, Yacoub argues that the BIA erred in refusing to 18 reopen his removal proceedings sua sponte . We lack 19 jurisdiction to consider this claim because the BIA’s 20 decision on this issue was “entirely discretionary.”Ali v. 21 Gonzales , 448 F.3d at 518; Cyrus v. Keisler , 505 F.3d 197, 22 202 (2d Cir. 2007). While we have held remand appropriate 23 “where the Agency may have declined to exercise its sua 245 sponte authority because it misperceived the legal 1 background and thought, incorrectly, that a reopening would 2 necessarily fail,” Mahmood v. Holder , 570 F.3d 466, 469 (2d 3 Cir. 2009), here, there is no indication that the BIA 4 misperceived any law in declining to exercise its sua sponte 5 authority, see 8 C.F.R. § 1003.2(a); In re J-J- , 21 I. & N. 6 Dec. 976, 976 (B.I.A. 1997). 7 Because the BIA reasonably concluded that Yacoub did 8 not demonstrate a material change in country conditions in 9 Syria, it did not abuse its discretion by denying his motion 10 to reopen as untimely. 11
See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. Any pending request for 17 oral argument in this petition is DENIED in accordance with 18 Federal Rule of Appellate Procedure 34(a)(2), and Second 19 Circuit Local Rule 34.1(b). 20
FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22