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.

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 9th 4 day of February, two thousand twelve.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 GUIDO CALABRESI,

10 GERARD E. LYNCH,

11 Circuit Judges. 

12 _______________________________________

13

14 WILLIAM HERRERA-MOLINA,

15 Petitioner, 

16

17 v. 11-1117-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________

23

24 FOR PETITIONER: Haroutyun Asatrian, Strasser

25 Asatrian, LLC, Newark, NJ.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Leslie McKay, Assistant

29 Director; Allison Frayer, Trial

30 Attorney, Office of Immigration
2

1 Litigation, Civil Division, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner William Herrera-Molina, a native and citizen

10 of Colombia, seeks review of a February 25, 2011, order of

11 the BIA denying his motion to reopen. In re William

12 Herrera-Molina, No. A027 085 434 (B.I.A. Feb. 25, 2011). We

13 assume the parties’ familiarity with the underlying facts

14 and procedural history in this case.

15 We review the BIA’s denial of a motion to reopen for

16 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

17 Cir. 2006). When the BIA considers relevant evidence of

18 country conditions in evaluating a motion to reopen, we

19 review the BIA’s factual findings under the substantial

20 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d

21 138, 169 (2d Cir. 2008).

22 Because Herrera-Molina filed his motion to reopen more

23 than 90 days after the BIA dismissed his appeal, he was

24 required to show changed circumstances in Colombia to excuse
3

1 the untimely filing. See 8 U.S.C. § 1229a(c)(7)(C)(i),

2 (ii). Herrera-Molina contends that the BIA abused its

3 discretion by failing to address certain evidence, chiefly

4 the Defense Cooperation Agreement (“DCA”) between the United

5 States and Colombia and the fact that his son is an active

6 U.S. Marine. However, a reasonable fact-finder would not be

7 compelled to conclude that the BIA ignored this evidence. 

8 See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)

9 (holding that the BIA is not required to “expressly parse or

10 refute on the record each individual argument or piece of

11 evidence offered by the petitioner” as long as it “has given

12 reasoned consideration to the petition, and made adequate

13 findings” (internal citations omitted)).

14 The record supports the BIA’s conclusion that Herrera15 Molina failed to demonstrate a change in country conditions. 

16 The service of Herrera-Molina’s son on active military duty

17 (in Japan) is a development in the Petitioner’s

18 circumstances, not in conditions in Colombia. See Li Yong

19 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d

20 Cir. 2005). Moreover, the record does not compel the

21 conclusion that the DCA increased the risk of anti-American

22 violence in Colombia; the history of such violence in
1 We 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

1 Colombia is long. Accordingly, we defer to the BIA’s

2 conclusion that the DCA did not represent a material change

3 in conditions. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d

4 Cir. 2007) (“[W]here there are two permissible views of the

5 evidence, the fact finder’s choice between them cannot be

6 clearly erroneous.”); Matter of S-Y-G-, 24 I. & N. Dec. 247,

7 257 (BIA 2007) (explaining that an “incremental or

8 incidental” change does not constitute changed country

9 conditions for purposes of motions to reopen).

10 Finally, Herrera-Molina argues that the DCA has changed

11 conditions in Colombia because it has been criticized by

Venezuela and Nicaragua.1 12 But nothing in the record compels

13 the conclusion that tensions between the countries are new,

14 or effected changed country conditions in Colombia.

15 Accordingly, the BIA relied on substantial evidence in

16 finding that Herrera-Molina did not establish changed

17 country conditions and did not abuse its discretion in

18 denying his motion to reopen as untimely. See 8 U.S.C.

19 § 1229a(c)(7)(C)(i),(ii).

20
5

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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