         11-2159-ag
         Agbomah v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A074 767 972
                              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
 4       New York, on the 15th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       GODWIN IKE AMULOSI AGBOMAH,
14                Petitioner,
15
16                           v.                                 11-2159-ag
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Judy Resnick, Far Rockaway, NY.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; John Hogan, Senior
28                                     Litigation Counsel; Ashley Y.
29                                     Martin, Trial Attorney, Office of
 1                             Immigration Litigation, United
 2                             States Department of Justice,
 3                             Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Petitioner Godwin Ike Amulosi Agbomah, a native and

10   citizen of Nigeria, seeks review of the April 29, 2011,

11   order of the BIA denying his motion to reopen.     In re Godwin

12   Ike Amulosi Agbomah, No. A074 767 972 (B.I.A. Apr. 29,

13   2011).   We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       The BIA’s denial of Agbomah’s motion to reopen was not

16   an abuse of discretion.     See Kaur v. BIA, 413 F.3d 232, 233

17   (2d Cir. 2005) (per curiam).    Agbomah contends that the BIA

18   engaged in improper factfinding.    However, because he filed

19   his motion to reopen with the BIA and not the immigration

20   judge (“IJ”), the BIA had the power to make findings of fact

21   in order to determine whether Agbomah presented previously

22   unavailable evidence.     See 8 C.F.R. § 1003.2(a), (c); cf.

23   8 C.F.R. § 1003.1(d)(3)(iv).

24       Furthermore, the BIA did not abuse its discretion in

25   denying his motion on the basis that the evidence he sought

                                     2
 1   to offer was not previously unavailable.      See 8 C.F.R.

 2   § 1003.2(c)(1) (2011); INS v. Abudu, 485 U.S. 94, 104-05

 3   (1988).     In support of his asylum claim, Agbomah submitted

 4   only a sworn statement claiming past persecution in 1994 and

 5   1999 in Nigeria that he could have presented during his

 6   hearings in 2005 and 2009.     See Norani v. Gonzales, 451 F.3d

 7   292, 294 & n.3 (2d Cir. 2006).      The BIA therefore reasonably

 8   found that Agbomah failed to present previously unavailable

 9   evidence.     See 8 C.F.R. § 1003.2(c)(1).

10       Agbomah’s claim that the BIA violated his due process

11   rights by depriving him of the opportunity to file an asylum

12   application is also unavailing.      Agbomah had ten years

13   before the IJ ordered him removed to submit an asylum

14   application based on the events that he alleges he

15   experienced more than a decade ago, yet did not.       He does

16   not allege that circumstances in Nigeria had changed in a

17   way material to his claim, and his election to delay filing

18   an asylum application is not a basis for accepting an

19   untimely filed asylum application.      See 8 U.S.C.

20   § 1229A(c)(7)(C)(ii).     Moreover, when Agbomah finally

21   presented his asylum claim, he failed to submit the

22   requisite asylum application with his motion to reopen.          See


                                     3
 1   8 C.F.R. § 1208.4(b)(4); Yuen Jin v. Mukasey, 538 F.3d 143,

 2   151 (2d Cir. 2008).   The BIA, therefore, did not deprive

 3   Agbomah of a “full and fair hearing.”   Li Hua Lin v. U.S.

 4   Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006).

 5       Because the BIA denied the motion to reopen on the

 6   permissible ground that the evidence presented was not

 7   previously unavailable, it was not required to address the

 8   merits of Agbomah’s claim.   See Zheng v. U.S. Dept. of

 9   Justice, 409 F.3d 43, 48 (2d Cir. 2005).

10       For the foregoing reasons, the petition for review is

11   DENIED. As we have completed our review, petitioner’s pending

12   motion for a stay of removal in this petition is DENIED as

13   moot.

14                                FOR THE COURT:
15                                Catherine O’Hagan Wolfe, Clerk
16
17




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