        11-926                                                                         BIA
        Diallo v. Holder                                                      A098 361 270


                            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 28th day of June, two thousand thirteen.
 5
 6      PRESENT:
 7
 8               JOHN M. WALKER, JR.,
 9               ROSEMARY S. POOLER,
10               RAYMOND J. LOHIER, JR.,
11                    Circuit Judges.
12      ______________________________________
13
14      THIERNO DIALLO,
15               Petitioner,
16
17                         v.                                  11-926
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:                Tony West, Assistant Attorney
27                                     General; Cindy S. Ferrier, Assistant
28                                     Director; Kimberly A. Burdge, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, Washington, DC.
 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       Thierno Diallo, a native and citizen of Guinea, seeks

 6   review of a February 22, 2011, decision of the BIA denying

 7   his motion to reopen.   In re Thierno Diallo, No. A098 361

 8   270 (B.I.A. Feb. 22, 2011).     We assume the parties’

 9   familiarity with the underlying facts and procedural history

10   of this case.

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

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

13   (2d Cir. 2006) (per curiam).     A motion to reopen proceedings

14   “must be filed no later than 90 days after the date on which

15   the final administrative decision was rendered,” unless the

16   movant provides previously unavailable material evidence.

17   8 C.F.R. § 1003.2(c)(1), (2).       Where, as here, the motion to

18   reopen is untimely, failure to offer such evidence is a

19   proper ground on which the BIA may deny a motion to reopen,

20   as is the movant’s failure to establish a prima facie case

21   for the underlying substantive relief sought.       See INS v.

22   Abudu, 485 U.S. 94, 104-05 (1988).




                                     2
 1       We find that the BIA did not abuse its discretion in
 2   finding that Diallo failed to establish his prima facie
 3   eligibility for relief based on his fear that the Guinean

 4   military regime was actively pursuing him or would harm him
 5   on account of his political activities in the United States.

 6   See Abudu, 485 U.S. at 104-105.    In support of his motion,
 7   Diallo submitted letters from his brother and friend
 8   describing the Guinean military’s suppression of peace

 9   demonstrators at a 2009 peace rally, and warning Diallo that

10   his life would be in danger if he returned to Guinea.    The
11   BIA, however, reasonably afforded little weight to this

12   evidence because, as the BIA found, the letters were

13   “unauthenticated” and possessed “little indicia of
14   reliability,” particularly in light of Diallo’s underlying

15   adverse credibility determination.    See Xiao Ji Chen v. U.S.

16   Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding
17   that the weight afforded to the applicant's evidence in

18   immigration proceedings lies largely within the discretion
19   of the agency); see also Qin Wen Zheng v. Gonzales, 500 F.3d
20   143, 146-47 (2d Cir. 2007) (relying on the doctrine of

21   falsus in uno, falsus in omnibus to conclude that the agency
22   may decline to credit documentary evidence submitted with a

23   motion to reopen by an alien who was found not credible in
24   the underlying proceedings).   Moreover, although Diallo

                                    3
 1   submitted evidence in an attempt to demonstrate changed
 2   country conditions, the BIA reasonably determined that any
 3   potential future harm that Diallo may suffer in Guinea as a

 4   result of civil strife and societal violence did not
 5   constitute a valid basis for asylum, as the harm would not

 6   be on account of a protected ground.   See Melgar de Torres
 7   v. Reno, 191 F.3d 307, 314 (2d Cir. 1999) (stating that
 8   “persecution must be on account of an enumerated ground set

 9   forth in the Act, and general crime conditions are not a

10   stated ground”).   Thus, we need not decide whether Diallo
11   established materially changed country conditions excusing

12   the time limitation applicable to his motion to reopen.

13       For the foregoing reasons, the petition for review is
14   DENIED.
15                               FOR THE COURT:
16                               Catherine O’Hagan Wolfe, Clerk




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