11-3540-ag BIA

Dia v. Holder A098 690 617

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 28th day of March, two thousand thirteen.

PRESENT:

RICHARD C. WESLEY,

DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges. 

_____________________________________

ABDOURAHAMANE DIA,

Petitioner, 

 v. 11-3540-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Theodore Vialet, New York, NY.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Jennifer P.

Levings, Senior Litigation Counsel;

Monica G. Antoun, Trial Attorney,

Office of Immigration Litigation,

Civil Division, United States

Department of Justice, Washington,

D.C.
UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

Abdourahamane Dia, a native and citizen of Guinea,

seeks review of an August 5, 2011 order of the BIA denying

his motion to reopen. In re Abdourahamane Dia, No. A098 690

617 (B.I.A. Aug. 5, 2011). We assume the parties’

familiarity with the underlying facts and procedural history

of this case.

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

abuse of discretion, mindful of the Supreme Court’s

admonition that such motions are “disfavored.” Ali v.

Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

Doherty, 502 U.S. 314, 322-23 (1992)). There is no dispute

that Dia’s 2011 motion to reopen was untimely, because his

administrative order of removal became final in 2008. See 8

U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). To the

extent Dia contends that the time limitation does not apply

to his motion to reopen because his motion is based on a

material change in conditions arising in Guinea, 8 U.S.C.

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§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), his

arguments are unpersuasive.

We find no abuse of discretion in the BIA’s

determination that Dia failed to provide objective evidence

of materially changed conditions in Guinea sufficient to

excuse his motion’s untimeliness. See 8 id. To the extent

Dia challenges the BIA’s finding that the letters from his

uncle and mother were not persuasive evidence of changed

conditions in Guinea, we will defer to the BIA’s conclusion

because the letters’ allegations of personal harm and

ongoing oppression of ethnic Peuhls and opposition political

groups were not corroborated by objective evidence. See

Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

Cir. 2006) (holding that the weight afforded to the

applicant’s evidence in immigration proceedings lies largely

within the discretion of the agency). Dia argues that news

articles he submitted with his motion corroborated the

letters’ allegations, but the articles address only the 2010

election in Guinea and do not demonstrate that the ethnic

violence against the Peuhls or the political oppression of

opposition groups is ongoing in Guinea, as required to

establish changed country conditions. See In re S-Y-G-, 24

I&N Dec. 247, 253 (BIA 2007) (untimely motion to reopen must

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demonstrate a material change of country conditions to

justify reopening). As Dia’s motion did not provide

objective evidence of changed conditions in Guinea, the BIA

did not err in denying his motion to reopen as untimely

because he did not establish an exception to the time

limitation. 8 C.F.R. § 1003.2(c)(3)(ii); 8 U.S.C.

§ 1229a(c)(7)(C)(ii). 

Moreover, with respect to Dia’s prospective asylum

claim based on his membership in the Union of Democratic

Forces in Guinea (“UFDG”), the BIA did not abuse its

discretion in concluding that any persecution of UFDG

members in Guinea was not material to Dia because his

affidavit was the only evidence indicating his support for

the UFDG, and his motion neither rebutted the adverse

credibility determination made with respect to him in prior

proceedings nor provided objective evidence of his UFDG

membership. See Qin Wen Zheng v. Gonzales, 500 F.3d 143,

146-47 (2d Cir. 2007) (concluding BIA reasonably declined to

credit a document submitted with a motion to reopen to show

changed country conditions where petitioner failed to

challenge underlying adverse credibility determination). As

Dia failed to show that any change in the treatment of UFDG

members was material, the BIA did not err in concluding that

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his motion is not excepted from the statutory and regulatory

time limitation. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8

C.F.R. § 1003.2(c)(3)(ii).

Accordingly, as Dia’s affidavit, the letters from Dia’s

family members, and the news articles were the only evidence

submitted to demonstrate a material change in conditions in

Guinea, substantial evidence supports the BIA’s

determination that Dia did not establish changed country

conditions, Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

Cir. 2008), and the BIA did not abuse its discretion in

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

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

For the foregoing reasons, the petition for review is

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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