12-3053

Osei v. Holder

BIA

A073 190 398

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 13th day of January, two thousand fourteen.

PRESENT:

JON O. NEWMAN,

DENNIS JACOBS,

DENNY CHIN,

Circuit Judges.

_____________________________________

JOANA OSEI,

Petitioner, 

 v. 12-3053

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_____________________________________

FOR PETITIONER: Judy Resnick, Far Rockaway, NY. 

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Terri J. Scadron,

Assistant Director; Greg D. Mack,

Senior Litigation Counsel, Office of

Immigration Litigation, United

States Department of Justice,

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

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Joana Osei, a native and citizen of Ghana,

seeks review of the July 27, 2012, decision of the BIA

denying her motion to reopen. In re Joana Osei, No. A073

190 398 (B.I.A. July 27, 2012). We assume the parties’

familiarity with the underlying facts and procedural history

of the case.

The BIA’s denial of Osei’s motion to reopen as untimely

was not an abuse of discretion. See Kaur v. BIA, 413 F.3d

232, 233 (2d Cir. 2005) (per curiam). An alien may file one

motion to reopen, generally no later than 90 days after the

date on which the final administrative decision was rendered

in the proceedings sought to be reopened. 8 U.S.C.

§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). There is

no dispute that Osei’s 2012 motion was untimely, as the

final administrative order was issued in 1998. Although the

agency may equitably toll the time limitation imposed on

motions to reopen if an alien demonstrates ineffective

assistance of counsel, see Iavorski v. INS, 232 F.3d 124,

135 (2d Cir. 2000), Osei does not challenge the BIA’s

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finding that she failed to meet the requirements for such a

claim. She also fails to meaningfully challenge the BIA’s

finding that she did not demonstrate a material change in

country conditions, which may also render the time

limitation imposed on motions to reopen inapplicable. See 

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

§ 1229a(c)(7)(C)(ii). Accordingly, that argument is waived. 

See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545

n.7 (2d Cir. 2005).

Even considering Osei’s vague argument that she

established changed conditions in Ghana, she fails to

demonstrate that the BIA abused its discretion in denying

her motion. Osei argued to the BIA that: (1) political

violence and violence towards women had increased in Ghana;

and (2) her children would suffer in Ghana because they are

unfamiliar with the country and her daughter would be

subjected to female genital mutilation (“FGM”). The BIA

reasonably found, however, that her fear of harm to her U.S.

citizen daughter, and not to herself, does not serve as a

basis for an asylum claim. See Kone v. Holder, 596 F.3d

141, 153 (2d Cir. 2010) (noting that FGM asylum claims must

be based on some harm to the applicant). Moreover, the BIA

reasonably found that Osei did not present other evidence of

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a material change in conditions because: (1) general civil

strife does not establish a basis for relief, see Melgar de

Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999); and

(2) regarding violence against women, the 2010 U.S. State

Department Human Rights Report on Ghana states that domestic

violence “continued to be a problem,” and the only prehearing evidence on record, a 1997 State Department Profile

of Asylum Claims, does not discuss the treatment of women

not subject to FGM, see 8 C.F.R. § 1003.2(c)(1); Norani v.

Gonzales, 451 F.3d 292, 294 & n.3 (2d Cir. 2006) (looking to

the date on which the IJ closed the record as the date

before which the evidence must have been unavailable,

undiscoverable, or unpresentable). Because Osei failed to

demonstrate a material change in country conditions, the BIA

did not abuse its discretion in denying the motion as

untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R.

§ 1003.2(c)(2), (3)(ii).

Contrary to Osei’s argument, the BIA was not required

to address her prima facie eligibility for relief, because

the timeliness issue was dispositive of the motion to

reopen. See 8 C.F.R. §§ 1003.2(c)(1)-(2). To the extent

Osei challenges the immigration judge’s decision declining

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to rescind her in absentia order, we lack jurisdiction to

consider the BIA’s affirmance of that decision, rendered in

April 2002. See 8 U.S.C. § 1252(b) (requiring petitions for

review to be based on one decision and filed with the Court

within 30 days of that decision). And, to the extent Osei

requested recission of the in absentia order in her motion

to reopen, that request was untimely, see 8 C.F.R.

§ 1003.23(b)(4)(iii)(A)(1), and, as previously noted, she

does not now challenge the BIA’s determination that she

failed to meet the requirements for tolling the time based

on ineffective assistance of counsel. 

For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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