09-4331-ag

Sherpa v. Holder

BIA

A098 228 768

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

4 York, on the 23 day of September, two thousand ten. rd

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 GUIDO CALABRESI,

10 DEBRA ANN LIVINGSTON,

11 Circuit Judges. 

12 _______________________________________

13

14 KANCHHI MAYA SHERPA A.K.A. KANCHI MAYA,

15 Petitioner, 

16

17 v. 09-4331-ag

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONER: Khagendra Gharti-Chhetry, New York,

25 New York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney General;

28 Jennifer J. Keeney, Senior Litigation

29 Counsel; Karen L. Melnik, Trial

30 Attorney, Office of Immigration

31 Litigation, United States Department
2

1 of Justice, Washington, D.C.

2 UPON DUE CONSIDERATION of this petition for review of a

3 decision of the Board of Immigration Appeals (“BIA”), it is

4 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

5 review is DENIED.

6 Kanchhi Maya Sherpa, a native and citizen of Nepal,

7 seeks review of a September 23, 2009, order of the BIA

8 denying her third motion to reopen. In re Kanchhi Maya

9 Sherpa, No. A098 228 768 (B.I.A. Sept. 23, 2009). We assume

10 the parties’ familiarity with the underlying facts and

11 procedural history of this case.

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

13 abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d

14 Cir. 2005) (per curiam). An alien may only file one motion

15 to reopen and must do so within 90 days of the final

16 administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R.

17 § 1003.2(c)(2). However, there is no time or numerical

18 limitations if the alien establishes materially “changed

19 country conditions arising in the country of nationality.” 

20 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

21 § 1003.2(c)(3)(ii). Here, Sherpa’s third motion to reopen

22 was indisputably untimely and number-barred. The BIA did

23 not abuse its discretion in finding that she failed to

24 establish changed country conditions excusing her untimely
3

1 filing. 

2 Contrary to Sherpa’s argument, the BIA properly relied

3 on the immigration judge’s underlying adverse credibility

4 determination to reject her documentary evidence as

5 insufficient to establish changed country conditions. See

6 Qin Wen Zheng v. Gonzales, 500 F.3d 142, 147-48 (2d Cir.

7 2007). Indeed, the BIA reasonably applied the doctrine

8 falsus in uno, falsus in omnibus, in rejecting Sherpa’s

9 unauthenticated and unreliable affidavits. See Siewe v.

10 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). Moreover, the

11 record does not indicate that the BIA failed to consider any

12 of the evidence Sherpa submitted. See Xiao Ji Chen v. U.S.

13 Dep’t of Justice, 471 F.3d 315, 338 (2d Cir. 2006).

14 For the foregoing reasons, the petition for review is

15 DENIED. As we have completed our review, any stay of

16 removal that the Court previously granted in this petition

17 is VACATED, and any pending motion for a stay of removal in

18 this petition is DISMISSED as moot. Any pending request for

19 oral argument in this petition is DENIED in accordance with

20 Federal Rule of Appellate Procedure 34(a)(2), and Second

21 Circuit Local Rule 34.1(b).

22 FOR THE COURT: 

23 Catherine O’Hagan Wolfe, Clerk