19-489

Magassouba v. Garland

BIA

A078 430 196

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 TO 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 Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 14th 4 day of May, two thousand twenty-one.

5

6 PRESENT:

7 BARRINGTON D. PARKER,

8 SUSAN L. CARNEY,

9 WILLIAM J. NARDINI,

10 Circuit Judges.

11 _____________________________________

12

13 MOUSTAPHA MAGASSOUBA, AKA 

14 MOUSTAPHA MAGESSOUBA, AKA DYIGBE

15 SANOJANA,

16 Petitioner,

17

18 v. 19-489

19 NAC

20 MERRICK B. GARLAND, UNITED 

21 STATES ATTORNEY GENERAL,*

22 Respondent.

23 _____________________________________

24

25 FOR PETITIONER: Moustapha Magassouba, pro se, New 

26 York, NY.

27

* The Clerk of the Court is respectfully directed to amend the caption as set forth.
2

1 FOR RESPONDENT: Joseph H. Hunt, Acting Assistant

2 Attorney General; Emily Anne 

3 Radford, Assistant Director; Sarah 

4 K. Pergolizzi, Trial Attorney, 

5 Office of Immigration Litigation, 

6 United States Department of 

7 Justice, Washington, DC.

8 UPON DUE CONSIDERATION of this petition for review of a 

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

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

11 is DENIED.

12 Petitioner Moustapha Magassouba, a native and citizen of 

13 Guinea, seeks review of a February 4, 2019, decision of the 

14 BIA reissuing its August 2018 denial of his motions to reopen 

15 and reconsider, and again denying reconsideration. In re 

16 Moustapha Magassouba, No. A 078 430 196 (B.I.A. Feb. 4, 2019). 

17 We assume the parties’ familiarity with the underlying facts 

18 and procedural history in this case.

19 The petition for review is timely only as to the BIA’s 

20 denial of reopening and reconsideration, and we do not reach 

21 Magassouba’s challenges to the underlying removal order and 

22 denial of relief. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 

23 265 F.3d 83, 89–90 (2d Cir. 2001). We review the BIA’s denial 

24 of a motion to reopen or reconsider for abuse of discretion 

25 and review factual findings regarding country conditions for 
3

1 substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 

2 138, 168-69 (2d Cir. 2008) (motion to reopen and country 

3 conditions findings); Jin Ming Liu v. Gonzales, 439 F.3d 109, 

4 111 (2d Cir. 2006) (motion to reconsider).

5 Reopening

6 We find no abuse of discretion. A motion to reopen must 

7 be filed within 90 days of the final removal order and must 

8 be based on new evidence that was not previously available.

9 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c). Magassouba’s 

10 2018 motion was untimely because his removal order was final 

11 in 2011. Although the time limitation for filing a motion 

12 to reopen does not apply if reopening is sought to apply for 

13 asylum and the motion “is based on changed country conditions 

14 arising in the country of nationality or the country to which 

15 removal has been ordered, if such evidence is material and 

16 was not available and would not have been discovered or 

17 presented at the previous proceeding,” 8 U.S.C. 

18 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii), 

19 Magassouba failed to establish any material change in Guinea 

20 because he did not submit any evidence of conditions in Guinea 

21 either at the time of his motion or at the time of his 
4

1 underlying removal proceedings. See In re S-Y-G-, 24 I. & N. 

2 Dec. 247, 253 (B.I.A. 2007) (“In determining whether evidence 

3 accompanying a motion to reopen demonstrates a material 

4 change in country conditions that would justify reopening, 

5 [the agency] compare[s] the evidence of country conditions 

6 submitted with the motion to those that existed at the time 

7 of the merits hearing below.”). Absent an exception to the 

8 time limitation, the only basis for reopening was an exercise 

9 of the BIA’s authority to reopen sua sponte, which is an 

10 “entirely discretionary” determination that we lack 

11 jurisdiction to review. Ali v. Gonzales, 448 F.3d 515, 518

12 (2d Cir. 2006).

13 Reconsideration

14 The BIA also did not abuse its discretion in denying 

15 reconsideration. A motion to reconsider “must be filed 

16 within 30 days of the date of entry of a final administrative 

17 order of removal.” 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. 

18 § 1003.2(c)(2). Motions to reconsider must “specify[] the 

19 errors of fact or law in the prior Board decision.” 8 C.F.R. 

20 § 1003.2(b)(1). 

21 Similar to his request to reopen, Magassouba’s 2018 
5

1 motion to reconsider was untimely because his removal order 

2 was final in 2011. See 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. 

3 § 1003.2(b)(2). To the extent Magassouba’s motion to reissue 

4 also requested reconsideration of the denial of reopening, 

5 his arguments did not relate to the BIA’s determination that 

6 his motion to reopen was untimely and he did not identify any 

7 grounds to excuse that prior untimely filing. He merely 

8 reiterated previous arguments that the BIA had rejected in 

9 the context of reopening, and therefore he did not identify 

10 an error of law or fact as is required for reconsideration. 

11 See 8 U.S.C. § 1229a(c)(6)(B); Jin Ming Liu, 439 F.3d at 111 

12 (“The BIA does not abuse its discretion by denying a motion 

13 to reconsider where the motion repeats arguments that the BIA 

14 has previously rejected.”).

15 For the foregoing reasons, the petition for review is 

16 DENIED. All pending motions and applications are DENIED and 

17 stays VACATED.

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe,

20 Clerk of Court