11-536-ag
Diallo v. Holder
                                                                                             BIA
                                                                                             A097 752 779


                            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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 22nd day
of August, two thousand twelve.

PRESENT:

                   JON O. NEWMAN,
                   JOSÉ A. CABRANES,
                   ROBERT D. SACK,

                        Circuit Judges.
_____________________________________

ALLARENY DIALLO,

                         Petitioner-Appellant,

                   v.                                                   No. 11-536-ag

ERIC H. HOLDER, United States Attorney General,

                  Respondent-Appellee.
_____________________________________

FOR PETITIONER-APPELLANT:                        THEODORE VIALET, New York, NY.

FOR RESPONDENT-APPELLEE:                         BLAIR O’CONNOR (Tony West, Assistant Attorney
                                                 General, Holly M. Smith, Senior Litigation Counsel on
                                                 the brief), Office of Immigration Litigation, Department
                                                 of Justice, Washington, DC.
        UPON DUE CONSIDERATION of this petition for review of a decision of the Board
of Immigration Appeals, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the petition for review is DENIED.

         Petitioner Allareny Diallo, a native of former Guinea-Bissau and citizen of Guinea, seeks
review of the January 14, 2011, order of the Board of Immigration Appeals (“BIA”) denying his
motion to reopen. In re Allareny Diallo, No. A097 752 779 (B.I.A. Jan. 14, 2011). We assume the
parties’ familiarity with the underlying facts and procedural history of the case.

        We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA,
413 F.3d 232, 233 (2d Cir. 2005). The BIA’s denial of Diallo’s motion to reopen as untimely was not
an abuse of discretion. See id. An alien seeking to reopen proceedings may file one motion to reopen
no later than 90 days after the date on which the final administrative decision was rendered. 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no dispute that Diallo’s June 2010 motion was
untimely, as the BIA’s final administrative decision was issued in October 2007. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).


        It is true that the time limitation does not apply to a motion to reopen if it is “based on
changed circumstances arising in the country of nationality or in the country to which deportation
has been ordered, if such evidence is material and was not available and could not have been
discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
§ 1229a(c)(7)(C)(ii). However, the BIA’s finding that Diallo failed to demonstrate changed country
conditions is supported by substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
Cir. 2008).


         Diallo asserts that he established material changed country conditions based on his recent
participation in the Union of Democratic Forces in Guinea in the United States, and the increased
human rights abuses against ethnic Fulanis and political opposition members like him by the new
Guinean military regime. Although Diallo provided evidence that the military regime committed
violence against opposition members in Guinea, the BIA reasonably found that Diallo did not
establish that the Guinean government would persecute him for his political activism in the United
States. Indeed, as the BIA noted, the military regime is no longer in power. Contrary to Diallo’s
contention, it was his burden to proffer new, previously unavailable evidence to demonstrate that he
would be persecuted in Guinea under the current government. See 8 C.F.R. § 1003.2(c)(3)(ii).




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        The BIA also reasonably afforded diminished weight to his affidavit and to his wife’s letter
because they were, to a significant extent, not based on personal knowledge, and Diallo’s wife’s letter
was unsworn. 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). Because Diallo failed to establish changed country conditions regarding
the treatment of opposition members, the BIA did not abuse its discretion in denying his motion
because he only demonstrated a change in personal circumstances. See Wei Guang Wang v. BIA, 437
F.3d 270, 273–74 (2d Cir. 2006).


         The BIA did not address explicitly whether Diallo established changed country conditions
relating to his claim that he feared persecution based on his Fulani ethnicity. However, the basis for
that fear was the same 2009 massacre, perpetrated by a former government, which formed the basis
for his claim of changed conditions with respect to his political opinion. Therefore, we conclude that
the BIA would reach the same conclusion on his ethnicity claim because he did not proffer evidence
showing changed country conditions under the current government, making remand futile. See id. at
275-76 (court of appeals should not remand to the BIA where doing so would be futile).


                                          CONCLUSION
        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.


                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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