         12-4068
         Diallo v. Holder
                                                                                       BIA
                                                                               A073 673 978
                             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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                DENNY CHIN,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       KENDA DIALLO, AKA KENDA DJALLO, AKA
14       BHA FRIA,
15                 Petitioner,
16
17                          v.                                  12-4068
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Theodore Vialet, New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; David V. Bernal,
28                                     Assistant Director; Anthony C.
29                                     Payne, Senior Litigation Counsel,
30                                     Office of Immigration Litigation,
31                                     United States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Kenda Diallo, a native and citizen of

 6   Guinea, seeks review of a September 24, 2012, decision of

 7   the BIA denying his motion to reopen his removal

 8   proceedings.   In re Kenda Diallo, No. A073 673 978 (B.I.A.

 9   Sept. 24, 2012).   We assume the parties’ familiarity with

10   the underlying facts and procedural history in this case.

11       We review the BIA’s denial of a motion to reopen for

12   abuse of discretion.     See Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006) (per curiam).    An alien seeking to reopen

14   proceedings is required to file a motion to reopen no later

15   than 90 days after the date on which the final

16   administrative decision was rendered.     See 8 U.S.C.

17   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    There is no

18   dispute that Diallo’s motion to reopen, filed in 2012, was

19   untimely, because the BIA issued a final order of removal in

20   Diallo’s case in 2008.

21       Diallo contends, however, that he has established

22   materially changed country conditions excusing his untimely

23   motion to reopen, namely, that the government of Guinea is

                                     2
 1   aware of his political activities in the United States, and

 2   will persecute him on the basis of those activities and his

 3   ethnicity if he is removed to Guinea.    See 8 U.S.C.

 4   § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).      The BIA

 5   did not abuse its discretion in finding that Diallo did not

 6   warrant reopening on this basis.   It gave “reasoned

 7   consideration” to Diallo’s country conditions evidence,

 8   including U.S. Department of State reports, and it

 9   reasonably found that although the reports indicated

10   violence against opposition party members actively engaged

11   in protests against the government, Diallo did not establish

12   that the government had persecuted individuals based on

13   their political activities outside the country.    See Wei

14   Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006); see

15   also Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.

16   2008).

17       Although Diallo argues that the evidence supports

18   drawing inferences in his favor, we review only whether a

19   reasonable adjudicator would be compelled to make contrary

20   findings in this case, and conclude that the BIA’s findings

21   are supported by substantial evidence.    See 8 U.S.C.

22   § 1252(b)(4)(B); see also Castro v. Holder, 597 F.3d 93, 99

23   (2d Cir. 2010).

                                  3
 1       Diallo also argues that if removed to Guinea, he would

 2   continue to participate in activities with an opposition

 3   political party and be persecuted on the basis of his future

 4   activities.   This argument was not exhausted before the

 5   agency, and we decline to consider it.   See Lin Zhong v.

 6   U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007).

 7       For the foregoing reasons, the petition for review is

 8   DENIED.   As we have completed our review, any pending motion

 9   for a stay of removal in this petition is DISMISSED as moot.

10   Any pending request for oral argument in this petition is

11   DENIED in accordance with Federal Rule of Appellate

12   Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).

13                               FOR THE COURT:
14                               Catherine O’Hagan Wolfe, Clerk




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