         09-4706-ag
         Mudiangomba v. Holder
                                                                                       BIA
                                                                               A095 837 895
                                 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 19 th day of November, two thousand               ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                RALPH K. WINTER,
11                     Circuit Judges.
12       ______________________________________
13
14       DIEMU JEAN PAUL MUDIANGOMBA, ALSO
15       KNOWN AS JOHN KAPYA PAUL MULUMBA,
16                Petitioner,
17                                                              09-4706-ag
18                         v.                                   NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:                  Justin Conlon, Law Offices of Justin
26                                        Conlon, North Haven, Connecticut.
27
28       FOR RESPONDENT:                  Tony West, Assistant Attorney
29                                        General; Leslie McKay, Assistant
30                                        Director; Kristin K. Edison,
31                                        Attorney, United States Department
1                            of Justice, Office of Immigration
2                            Litigation, Civil Division,
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, Diemu Jean Paul Mudiangomba, allegedly a

10   native and citizen of the Democratic Republic of Congo

11   (“DRC”), seeks review of an October 16, 2009, decision of

12   the BIA denying his motion to reopen his removal

13   proceedings.   In re Diemu Jean Paul Mudiangomba, No. A095

14   837 895 (B.I.A. Oct. 16, 2009).   We assume the parties’

15   familiarity with the underlying facts and procedural history

16   of the case.

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

18   abuse of discretion.   Ali v. Gonzales, 448 F.3d 515, 517 (2d

19   Cir. 2006).

20       After the July 2006 merits hearing, the IJ found that

21   the Petitioner had failed to establish his Congolese

22   identity, which defeated prima facie eligibility for relief.

23   See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528

24   (2d Cir. 2006) ( “[A] petitioner’s nationality, or lack of


                                   2
1    nationality, is a threshold question in determining his

2    eligibility for asylum.”) (internal quotation marks

3    omitted).   On the motion for rehearing, the BAD did not err

4    in declining to consider Petitioner’s newly submitted

5    identity documents. See INS v. Abudu, 485 U.S. 94, 104-05

6    (1988) (recognizing that in an untimely motion to reopen

7    based on changed country conditions, the movant must submit

8    previously unavailable evidence demonstrating his prima

9    facie eligibility for relief).    As the BIA found, and

10   Mudiangomba conceded before the BIA, the identity documents

11   Mudiangomba submitted with his motion to reopen were not

12   previously unavailable.   Thus, the BIA reasonably declined

13   to consider those documents in its evaluation of

14   Mudiangomba’s motion to reopen.    See id.   Accordingly,

15   because Mudiangomba failed to successfully rebut the IJ’s

16   dispositive identity determination and establish his prima

17   facie eligibility for relief, the BIA did not abuse its

18   discretion in denying his motion to reopen.

19       We need not reach Mudiangomba’s arguments regarding the

20   BIA’s determination that he failed to establish materially

21   changed country conditions excusing the time limitation

22   applicable to his motion to reopen.


                                   3
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

5    this petition is DISMISSED as moot. Any pending request for

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12
13




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