19

- 2464 Sow v. Garland



## 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 O RDER ” ). A PARTY CITING TO 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 for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 1 3 t h da y of S e p t e m b e r , two thousand twenty

- one . 3 4 PRESENT: 5 REENA RAGGI , 6 DENNY CHIN , 7 MICHAEL H. PARK , 8 Circuit Judges. 9

____________________________________ _ 10 11 IBRAHIMA SORY SOW, 12 13 Petitioner , 14 15

v. 19

- 2464 16 17 MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL , 18 19 Respondent. 20

_____________________________________ 21 22 F OR PETITIONER : Robert F. Graziano, Buffalo, NY

. 23 24 F OR RESPONDENT : Katherine S. Fischer, Trial Attorney, 25 ( Margaret Kuehne Taylor, Senior Litigation 26 Counsel, Office of Immigration Litigation
, 27 on the brief ), for Brian Boynton, Acting 28 Assistant Attorney General, Civil Division, 29 United States Department of Justice, 30 Washingt on, DC

. 312 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration 1
Appeals (“BIA”) decision
, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that 2
the petition for review is DENIED

. 3
Ibrahima Sory Sow, a native and citizen of the Republic of Guinea, was ordered removed 4

from the United States in 2007 . W e denied his petition for review of the order, concluding, inter 5

alia , that substantial evidence supported the Immigration Judge’s (“IJ”) adverse cr edibility 6
determination and thus his denial of Sow’s claims for withholding of removal and relief under the 7
Convention Against Torture

. See Sow v. Dep’t of Homeland Sec. , 285 F. App’x 800 , 801 (2d Cir. 8
2008). Over a decade later, in May 2018, immigration authorities encountered and detained Sow 9
at the Champlain, New York port of entry. Sow refused removal and moved to reopen his 10
immigration proceedings. Sow now petitions this court for review of the July 17, 2019 BIA 11
decision denying his motion to re ope n. See In re Sow , A098

- 420

- 116 (B.I.A. July 17, 2019)

. We 12
assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal

. 13
Ordinarily, a motion to reopen must be filed within 90 days of the order of removal

. S ee 14

8 U.S.C. § 1229a(c)(7)(C)(i)

. B ut no time limitations bar such a motion by an alien who seeks “to 15
apply or reapply for asylum or withholding of deportation based on changed circumstances arising 16
in the country of nationality or in the country to which depor tation has been ordered, if such 17
evidence is material and was not available and could not have been discovered or presented at the 18
previous hearing

. ” 8 C.F.R. § 1003.2(c)(3)(ii) ; see 8 U.S.C. § 1229a(c)(7)(C)(ii)

. “To prevail on 19

the motion, the movant mu st establish prima facie eligibility for asylum, i.e. , ‘a realistic chance’ 20
that he will be able to establish eligibility.” Poradisova v. Gonzales , 420 F.3d 70, 78 (2d Cir. 21
2005) (citation omitted)

. The BIA denied Sow’s motion to reopen because Sow failed (1) “to 22
demonstrate how the evidence now presented establishes changed country conditions in Guinea 233 since his 2005 hearing
, ” and (2) to “carr[y] his burden of demonstrating prima facie eligibility fo r 1

the relief he seeks.” In re Sow , A098

- 420

- 116, at 2. 2
Sow challenges only the first conclusion; his opening brief is de void of any argument that 3

the BIA erred as to his prima facie eligibility for relief. He thus forfeits all objections to the BIA’s 4

c onclusion that he had not established prima facie eligibility. See Norton v. Sam’s Club , 145 F.3d 5
114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and 6
normally will not be addressed on appeal.”). An alien’s fai lure to establish prima facie eligibility
, 7

however, is an “independent ground[] on which the BIA might deny a motion to reopen.” INS v. 8
Doherty
, 50 2 U

. S

. 314, 323 (1992). Therefore, w e must deny a petition for review where, as here, 9

the petitioner fails to challenge an independent and sufficient ground for the BIA’s decision. 10

In any event , we see no abuse of discretion in the BIA’s conclusion that Sow’s proffered 11
evidence failed to establish changed country conditions. See Jian Hui Shao v. Mukasey , 546 F.3d 12

138, 168

– 69 (2d Cir. 2008) (reviewing the BIA’s findings as to country conditions for substantial 13
evidence and ultimate decision for abuse of discretion). While we do not necessarily agree with 14

the BIA’s characterization of Sow’s new affidavit and reports, the BIA reasonably concluded that 15
the additional evidence could not overcome the IJ’s 2005 adverse credibility finding. Cf. Qin Wen 16
Zheng v. Gonzales , 500 F.3d 143, 147 (2d Cir. 2007) ( holding that the BIA did not err in rejecting 17

e vidence of changed country conditions because, under “the doctrine of falsus in uno, falsus in 18

omnibus [,]

. . . a single instance of false testimony may (if attribut able to the petitioner) infect the 19

balance of the alien’s uncorroborated or unauthenticated evidence” ( internal citation and quotation 20

marks omitted) ). 21

22

234 We have considered the remainder of Sow’s arguments and find them to be without merit. 1
For the foregoing reasons, we deny the petition for review. 2

FOR THE COURT: 3 Catherine O ’ Hagan Wolfe, Cler k of Court 4