11-1117-ag Herrera-Molina v. Holder BIA A027 085 434 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## AMENDED 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 9 th** **day of February, two thousand twelve.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge, 8 **GUIDO CALABRESI,** 9 **GERARD E. LYNCH,** 10 Circuit Judges**.** 11

**_______________________________________** 12 13 **WILLIAM HERRERA-MOLINA,** 14 Petitioner**,** 15 16 **v. 11-1117-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**______________________________________** 22 23 **FOR PETITIONER: Haroutyun Asatrian, Strasser** 24 **Asatrian, LLC, Newark, NJ.** 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney** 27 **General; Leslie McKay, Assistant** 28 **Director; Allison Frayer, Trial** 29 **Attorney, Office of Immigration** 302 **Litigation, Civil Division, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner William Herrera-Molina, a native and citizen 9 of Colombia, seeks review of a February 25, 2011, order of 10 the BIA denying his motion to reopen. In re William 11 Herrera-Molina, No. A027 085 434 (B.I.A. Feb. 25, 2011). We 12 assume the parties’ familiarity with the underlying facts 13 and procedural history in this case. 14 We review the BIA’s denial of a motion to reopen for 15 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d 16 Cir. 2006). When the BIA considers relevant evidence of 17 country conditions in evaluating a motion to reopen, we 18 review the BIA’s factual findings under the substantial 19 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 20 138, 169 (2d Cir. 2008). 21 Because Herrera-Molina filed his motion to reopen more 22 than 90 days after the BIA dismissed his appeal, he was 23 required to show changed circumstances in Colombia to excuse 243 the untimely filing. See 8 U.S.C. § 1229a(c)(7)(C)(i), 1 (ii). Herrera-Molina contends that the BIA abused its 2 discretion by failing to address certain evidence, chiefly 3 the Defense Cooperation Agreement (“DCA”) between the United 4 States and Colombia and the fact that his son is an active 5 U.S. Marine. However, a reasonable fact-finder would not be 6 compelled to conclude that the BIA ignored this evidence. 7 See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) 8 (holding that the BIA is not required to “expressly parse or 9 refute on the record each individual argument or piece of 10 evidence offered by the petitioner” as long as it “has given 11 reasoned consideration to the petition, and made adequate 12 findings” (internal citations omitted)). 13 The record supports the BIA’s conclusion that Herrera14 Molina failed to demonstrate a change in country conditions. 15 The service of Herrera-Molina’s son on active military duty 16 (in Japan) is a development in the Petitioner’s 17 circumstances, not in conditions in Colombia. See Li Yong 18 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d 19 Cir. 2005). Moreover, the record does not compel the 20 conclusion that the DCA increased the risk of anti-American 21 violence in Colombia; the history of such violence in 221We do not consider the internet articles HerreraMolina discusses in his brief in support of this argument as they are not in the administrative record. See 8 U.S.C. § 1252(b)(4)(A). 4 Colombia is long. Accordingly, we defer to the BIA’s 1 conclusion that the DCA did not represent a material change 2 in conditions. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d 3 Cir. 2007) (“[W]here there are two permissible views of the 4 evidence, the fact finder’s choice between them cannot be 5 clearly erroneous.”); Matter of S-Y-G- , 24 I. & N. Dec. 247, 6 257 (BIA 2007) (explaining that an “incremental or 7 incidental” change does not constitute changed country 8 conditions for purposes of motions to reopen). 9 Finally, Herrera-Molina argues that the DCA has changed 10 conditions in Colombia because it has been criticized by 11 Venezuela and Nicaragua. 1But nothing in the record compels 12 the conclusion that tensions between the countries are new, 13 or effected changed country conditions in Colombia. 14 Accordingly, the BIA relied on substantial evidence in 15 finding that Herrera-Molina did not establish changed 16 country conditions and did not abuse its discretion in 17 denying his motion to reopen as untimely. See 8 U.S.C. 18 § 1229a(c)(7)(C)(i),(ii). 19

205 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of 2 removal that the Court previously granted in this petition 3 is VACATED, and any pending motion for a stay of removal in 4 this petition is DISMISSED as moot. Any pending request for 5 oral argument in this petition is DENIED in accordance with 6 Federal Rule of Appellate Procedure 34(a)(2), and Second 7 Circuit Local Rule 34.1(b). 8

FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12 13