     13-3515
     Barry v Lynch
                                                                                       BIA
                                                                                 Laforest, IJ
                                                                               A095 473 566
                          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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   1st day of July, two thousand fifteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PIERRE N. LEVAL,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   ADAMA DIAN BARRY,
14            Petitioner,
15
16                   v.                                              13-3515
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,1
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Theodore Vialet, New York, NY.
24
25   FOR RESPONDENT:                      Stuart F. Delery, Assistant
26                                        Attorney General; Ernesto H.

     1 - Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
     Loretta E. Lynch is automatically substituted for former Attorney General Eric
     H. Holder, Jr.
1                                Molina, Jr., Assistant Director;
2                                Tracey N. McDonald, Trial Attorney,
3                                Office of Immigration Litigation,
4                                United States Department of
5                                Justice, Washington, D.C.
6
7        UPON DUE CONSIDERATION of this petition for review of a

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

9    ORDERED, ADJUDGED, AND DECREED that the petition for review is

10   DENIED.

11       Petitioner Adama Dian Barry, a native and citizen of

12   Guinea, seeks review of a September 4, 2013, decision of the

13   BIA affirming a June 6, 2012, decision of an Immigration Judge

14   (“IJ”), denying Barry’s motion to reopen.     In re Adama Dian

15   Barry, No. A095 473 566 (B.I.A. Sept. 4, 2013), aff’g No. A095

16   473 566 (Immig. Ct. N.Y. City June 6, 2012).     We assume the

17   parties’ familiarity with the underlying facts and procedural

18   history in this case.

19       Under the circumstances of this case, we have reviewed the

20   decisions of both the IJ and the BIA “for the sake of

21   completeness.”   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

22   524, 528 (2d Cir. 2006).   We review the agency’s denial of a

23   motion to reopen for abuse of discretion, mindful of the Supreme

24   Court’s admonition that such motions are “disfavored.”   Ali v.
                                    2
1    Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

2    Doherty, 502 U.S. 314, 322-23 (1992)).     An alien seeking to

3    reopen proceedings may file one motion to reopen no later than

4    90 days after the date on which the final administrative

5    decision was rendered.   8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

6    § 1003.2(c)(2).   There is no dispute that Barry’s 2012 motion

7    was untimely, as the agency’s final administrative decision was

8    issued in 2004.

9        The time limitation may be excused if the motion is “based

10   on changed country conditions arising in the country of

11   nationality . . . if such evidence is material and was not

12   available and could not have been discovered or presented at

13   the previous hearing.”   8 C.F.R.§ 1003.23(b)(4)(i); see also

14   8 U.S.C. § 1229a(c)(7)(C)(ii).       In addition, ineffective

15   assistance of counsel may equitably toll the filing deadline.

16   Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008).   Here,

17   the BIA’s denial of Barry’s motion to reopen as untimely was

18   not an abuse of discretion.   Kaur v. BIA, 413 F.3d 232, 233 (2d

19   Cir. 2005).

20

21
                                    3
1    I.   Ineffective Assistance

2         Barry claims that the filing deadline for her motion to

3    reopen should be tolled to accommodate her claim of ineffective

4    assistance.      While a showing of ineffective assistance may

5    equitably toll the filing deadline for a motion to reopen, an

6    alien must demonstrate “due diligence” in pursuing her claim

7    during   “both   the   period   of       time   before   the   ineffective

8    assistance of counsel was or should have been discovered and

9    the period from that point until the motion to reopen is filed.”

10   Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008); see also

11   Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).            In considering

12   whether a petitioner exercised due diligence, “there is no

13   period of time which we can say is per se unreasonable, and,

14   therefore, disqualifies a petitioner from equitable tolling–

15   or, for that matter, any period of time that is per se

16   reasonable.”     Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.

17   2007).

18        The agency did not abuse its discretion in finding that,

19   even assuming Barry’s prior counsel was ineffective, she failed

20   to demonstrate due diligence in the eight years between the

21   BIA’s dismissal of her appeal as untimely and the filing of her
                                          4
1    motion to reopen.       Barry admits that she knew her appeal was

2    dismissed, yet still waited years to file a complaint and retain

3    new counsel.    A delay as short as 14 months may constitute lack

4    of due diligence.       See Rashid, 533 F.3d at 132.

5        Furthermore, the agency did not abuse its discretion in

6    concluding that Barry failed exercise due diligence regarding

7    her former counsel’s failure to file a motion to reopen based

8    on changes in asylum law in 2008.     The interval between the date

9    Barry spoke with her former counsel about filing a motion to

10   reopen and the date she began to pursue an ineffective

11   assistance claim is unclear, but even based on the most liberal

12   timeline the record suggests, Barry did not show due diligence.

13   II. Changed Country Conditions

14       Barry      argues     that   under    the   current    Guinean

15   administration, she is in danger of persecution by “military

16   and cultural forces” because she is ethnically Fulani.        When

17   the BIA considers relevant evidence of country conditions in

18   evaluating a motion to reopen, we review those factual findings

19   under the substantial evidence standard.         Jian Hui Shao v.

20   Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).       Here, substantial

21   evidence supports the agency’s finding that Barry did not
                                       5
1    establish materially changed conditions in Guinea regarding

2    treatment of Fulanis.

3        Barry presented no evidence at all regarding the treatment

4    of Fulanis in Guinea at the time of her original merits hearing.

5    See Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006); Matter

6    of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007).    The current country

7    conditions evidence does not suggest that circumstances have

8    worsened for Fulanis since the election of President Conde.

9    The 2010 U.S. State Department Report reflects significant

10   ethnic tensions in Guinea, but it does not establish that the

11   current    administration   persecutes   Fulanis.    Instead,   it

12   primarily describes fighting that occurred between ethnic

13   groups immediately following the Conde election.

14       Barry also claims that conditions in Guinea have changed

15   with regard to treatment of those who opposed forced marriages

16   and FGM.    She did not raise this claim before the agency,

17   however, and the Government noted her failure to exhaust.

18   Accordingly, we cannot address it here.    Lin Zhong v. U.S. Dep’t

19   of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

20       For the foregoing reasons, the petition for review is

21   DENIED.    As we have completed our review, any stay of removal
                                     6
1   that the Court previously granted in this petition is VACATED,

2   and any pending motion for a stay of removal in this petition

3   is DISMISSED as moot.   Any pending request for oral argument

4   in this petition is DENIED in accordance with Federal Rule of

5   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

6   34.1(b).

7                               FOR THE COURT:
8                               Catherine O=Hagan Wolfe, Clerk




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