         11-5353
         Butta v. Holder
                                                                                       BIA
                                                                               A076 197 761
                            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 18th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RAYMOND J. LOHIER, JR.,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       MOHAMMAD RASHID BUTTA,
14                Petitioner,
15
16                         v.                                   11-5353
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Melinda M. Basaran, Paterson, NJ.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Ernesto H. Molina,
27                                     Jr., Assistant Director; Nancy N.
28                                     Safavi, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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 Mohammad Rashid Butta, a native and citizen

 6   of Pakistan, seeks review of a November 29, 2011, order of

 7   the BIA, denying his motion to reopen his removal

 8   proceedings.   In re Mohammad Rashid Butta, No. A076 197 761

 9   (B.I.A. Nov. 29, 2011).    We assume the parties’ familiarity

10   with the underlying facts and procedural history in this

11   case.

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

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

14   (2d Cir. 2006) (per curiam).    An alien seeking to reopen

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

16   than 90 days after the date on which the final

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

18   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    There is no

19   dispute that Butta’s motion to reopen, filed in 2011, was

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

21   Butta’s case in 2005.     Butta contends, however, that he has

22   established changed circumstances excusing his untimely

23   motion to reopen, namely, materially worsened conditions in

                                     2
 1   Pakistan for moderate Muslims who reject extremist ideology.

 2   See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

 3   § 1003.2(c)(3)(ii).

 4       The BIA did not err in declining to credit Butta’s

 5   generalized, uncorroborated statements in his affidavit that

 6   he is a moderate Muslim in light of the agency’s underlying

 7   adverse credibility determination.   As Butta notes, we have

 8   held that a prior adverse credibility determination does not

 9   necessarily preclude a finding of a well-founded fear of

10   persecution when the new claim rests on a factual predicate

11   “independent of the testimony the [immigration judge] found

12   not to be credible.”   Paul v. Gonzales, 444 F.3d 148, 154

13   (2d Cir. 2006).   However, this does not mean that the prior

14   adverse credibility determination is never relevant to the

15   agency’s assessment of evidence supporting a new asylum

16   claim, as we have also held that the agency may consider

17   prior false documents or testimony in deciding whether to

18   credit “‘uncorroborated or unauthenticated evidence.’”     Qin

19   Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007)

20   (quoting Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007)).

21   Here, the BIA appropriately considered the underlying

22   adverse credibility determination in declining to rely on


                                   3
 1   Butta’s brief, conclusory statement in his affidavit that he

 2   was a moderate Muslim who would be persecuted on account of

 3   his religion, where he submitted no other corroboration of

 4   his religious beliefs.   Because evidence of Butta’s

 5   religious beliefs was necessary to assess whether he

 6   established a material change in conditions that affected

 7   his eligibility for asylum, the BIA did not err in finding

 8   that Butta did not establish changed circumstances

 9   warranting reopening of his proceedings.   See 8 U.S.C.

10   § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).

11       Butta also argues that the BIA erred in finding, in the

12   alternative, that Butta’s country conditions evidence did

13   not establish changed conditions in Pakistan for a person in

14   his circumstances.   While the BIA’s analysis of the country

15   conditions evidence does not clearly address whether Butta

16   established materially worsened country conditions for

17   moderate Muslims, see Poradisova v. Gonzales, 420 F.3d 70,

18   77, 81-82 (2d Cir. 2005), we decline to remand on this

19   basis, as the BIA’s finding that Butta’s affidavit was not

20   reliable, and thus that he did not adequately establish his

21   religious beliefs, was dispositive of his motion, and is a

22   sufficient basis for the agency’s decision.   See Cao He Lin


                                   4
 1   v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005)

 2   (despite error, remand is not required where the agency

 3   adopts an “alternative and sufficient basis” for its

 4   decision).

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

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




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