     15-847
     Sesay v. Lynch
                                                                                       BIA
                                                                               A095 405 335

                           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 September, two thousand sixteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            ROBERT D. SACK,
 9            REENA RAGGI,
10                 Circuit Judges.
11   _____________________________________
12
13   MOHAMED SESAY,
14
15                    Petitioner,
16
17                    v.                                             15-847
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                     Thomas V. Massucci, New York, New
26                                       York.
27
28   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
29                                       Assistant Attorney General; Francis
30                                       W.   Fraser,    Senior   Litigation
1                                   Counsel; W. Daniel Shieh, Trial
2                                   Attorney, Office of Immigration
3                                   Litigation,     United      States
4                                   Department of Justice, Washington,
5                                   DC.
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 Mohamed Sesay, a native and citizen of Sierra

12   Leone, seeks review of a March 10, 2015, decision of the BIA

13   denying of his motion to reopen.      In re Mohamed Sesay, No. A095

14   405 335 (B.I.A. Mar. 10, 2015).           We assume the parties’

15   familiarity with the underlying facts and procedural history

16   in this case.

17       We review the denial of a motion to reopen for abuse of

18   discretion,     but   review   any    findings   regarding   country

19   conditions for substantial evidence.       Jian Hui Shao v. Mukasey,

20   546 F.3d 138, 168-69 (2d Cir. 2008).       When, as here, an alien

21   files a timely petition from the denial of a motion to reopen,

22   we review only the denial of the motion, and not the agency’s

23   underlying decisions.      See Ke Zhen Zhao v. U.S. Dep’t of

24   Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).
                                       2
1          An alien seeking to reopen proceedings may file only one

2    motion to reopen no later than 90 days after the date on which

3    the final administrative decision was rendered.                   8 U.S.C.

4    § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).                However,

5    that time limitation is excused if the motion “is based on

6    changed      country    conditions    arising    in   the    country    of

7    nationality or the country to which removal has been ordered,

8    if such evidence is material and was not available and would

9    not   have    been     discovered    or   presented   at    the   previous

10   proceedings.”        8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8

11   C.F.R. § 1003.2(c)(3)(ii).

12         The BIA had the discretion to discredit Sesay’s evidence

13   based on the underlying adverse credibility determination

14   against him.     See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147

15   (2d Cir. 2007) (holding that the BIA may decline to credit

16   documentary evidence submitted with a motion to reopen if it

17   has “legitimate concerns about [the petitioner’s] credibility”

18   based on a previous adverse credibility determination and the

19   petitioner offers no other corroborating evidence).                  Sesay

20   submitted a newspaper article and affidavits from his sister

21   and friends.      As a general matter, these documents largely
                                           3
1    reiterated   his   original    asylum   claim,   which   the   agency

2    previously rejected as lacking credibility.          Moreover, the

3    article conflicted with Sesay’s original application with

4    respect to his father’s name and the number of siblings he has,

5    and despite focusing on Sesay’s father, omitted mention of his

6    father’s 1999 murder.   The BIA was entitled to question whether

7    the article actually related to Sesay or another person with

8    the same name, particularly given Sesay’s credibility problems.

9    See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (finding no

10   abuse of discretion when the BIA “clearly explained that the

11   evidence submitted by petitioner in support of her motion was

12   not ‘material’ because it did not rebut the adverse credibility

13   finding that provided the basis for the IJ’s denial of

14   petitioner’s underlying asylum application”).

15       Additionally, the BIA found that most of the information

16   in the newspaper article was previously available.              That

17   finding was also sound.       The article reports that Sesay fled

18   Sierra Leone to escape the Poro Society persecution.           If so,

19   then that persecution occurred long before Sesay’s merits

20   hearing in 2008: Sesay left Sierra Leone in 1999.        See 8 U.S.C.

21   § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
                                       4
1        Sesay asserts that his motion detailed a new threat from

2    the Poro Society, a different rebel group from the RUF described

3    in his first application.   Sesay did not make this distinction

4    to the BIA and the agency did not discuss it.   His argument is

5    therefore unexhausted, and so we decline to consider it.    See

6    Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir.

7    2007) (providing that judicially imposed issue exhaustion is

8    mandatory).

9        For the foregoing reasons, the petition for review is

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

11   that the Court previously granted in this petition is VACATED,

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

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

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

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

16   34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk




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