     15-3494
     Enoh v. Sessions
                                                                                       BIA
                                                                               A095 420 131

                             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   16th day of August, two thousand seventeen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            JOHN M. WALKER, JR.,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   TERENCE ENOH ENOH,
14            Petitioner,
15
16                      v.                                           15-3494
17                                                                   NAC
18   JEFFERSON B. SESSIONS, III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Eric Niba, Niba & Associates,
24                                       Atlanta, GA.
25
26   FOR RESPONDENT:                     Chad Readler, Acting Assistant
27                                       Attorney General; Kiley Kane, Senior
28                                       Litigation Counsel; Kathryn M.
29                                       McKinney, Attorney, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       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 is

4    GRANTED in part, DENIED in part, and the case is REMANDED for

5    further proceedings consistent with this order.

6        Petitioner Terence Enoh Enoh, a native and citizen of

7    Cameroon, seeks review of an October 5, 2015, decision of the

8    BIA denying his motion to reconsider and reopen.        In re Terence

9    Enoh Enoh, No. A095 420 131 (B.I.A. Oct. 5, 2015).          We assume

10   the parties’ familiarity with the underlying facts and

11   procedural history in this case.

12       Where, as here, an alien files a motion that seeks both

13   reconsideration   of   a   prior       decision   and   reopening   of

14   proceedings, we treat the motion as comprising distinct motions

15   to reconsider and reopen.    See Alrefae v. Chertoff, 471 F.3d

16   353, 357 (2d Cir. 2006).   We review the BIA’s denial of motions

17   to reconsider and reopen for abuse of discretion.           Zhao Quan

18   Chen v. Gonzales, 492 F.3d 153, 154 (2d Cir. 2007).          When the

19   BIA considers relevant evidence of country conditions in

20   evaluating a motion to reopen, we review the BIA’s factual

21   findings under the substantial evidence standard.            Jian Hui

22   Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

                                        2
1    I.   Motion to Reopen

2         An alien seeking to reopen proceedings may file one motion

3    to reopen no later than 90 days after the date on which the final

4    administrative decision was rendered.     8 U.S.C.

5    § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).      It is

6    undisputed that Enoh’s August 2015 motion to reopen was untimely

7    and number barred because it was his second motion to reopen

8    and was filed nine months after his order of removal became final

9    in November 2014.     See 8 U.S.C. § 1101(a)(47)(B)(i).    These

10   time and numerical limitations may be excused, however, if the

11   motion is “based on changed country conditions arising in the

12   country of nationality or the country to which removal has been

13   ordered, if such evidence is material and was not available and

14   would not have been discovered or presented at the previous

15   proceedings.”   8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

16   § 1003.2(c)(3)(ii).

17        Upon review, we conclude that the BIA abused its discretion

18   when it failed to address country conditions evidence relevant

19   to Enoh’s Christianity-based persecution claim, which he raised

20   for the first time in his supplemental affidavit.         The BIA

21   acknowledged that Enoh submitted the supplemental affidavit,

22   but it made no findings as to whether country conditions had

                                     3
1    materially changed for Christians in Cameroon.              That was error.

2    See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)

3    (“[T]he BIA abuses its discretion if it fails completely to

4    address evidence of changed country conditions offered by a

5    petitioner.”); Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir.

6    2005) (“IJs and the BIA have a duty to explicitly consider any

7    country conditions evidence submitted by an applicant that

8    materially bears on his claim.           A similar, if not greater, duty

9    arises in the context of motions to reopen based on changed

10   country conditions.”).       Moreover, while Enoh had been found not

11   credible in his underlying proceedings as to his past political

12   activities, that finding does not impugn his Christianity-based

13   claim   or   obviate   the    need   to    consider    relevant    country

14   conditions.    See Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.

15   2006) (“[A]n [asylum] applicant may prevail on a theory of

16   future persecution despite an IJ’s adverse credibility ruling

17   as to past persecution, so long as the factual predicate of the

18   applicant’s claim of future persecution is independent of the

19   testimony     that   the     IJ   found     not   to   be     credible.”).

20   Accordingly, we grant in part the petition for review with

21   respect to Enoh’s Christianity-based claim for reopening and

22   remand to the BIA to consider whether Enoh’s evidence concerning

                                          4
1    the treatment of Christians in Cameroon amounts to materially

2    changed country conditions.

3        However, the petition is denied as to the following.     We

4    find no abuse of discretion in the BIA’s determination that Enoh

5    failed to demonstrate a material change in country conditions

6    for his political-based persecution claim, which turned on his

7    support for the Southern Cameroon National Council (“SCNC”).

8    “In determining whether evidence accompanying a motion to

9    reopen demonstrates a material change in country conditions

10   that would justify reopening, [the BIA] compare[s] the evidence

11   of country conditions submitted with the motion to those that

12   existed at the time of the merits hearing below.”      See In re

13   S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007).   Here, the BIA

14   properly observed that the evidence linking SCNC with Boko Haram

15   was not new or previously unavailable because this linkage began

16   before Enoh’s merits hearing in September 2012.    See 8 U.S.C.

17   § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).      The BIA

18   also reasonably determined that Enoh’s generalized country

19   conditions evidence showed a continuation of the same or similar

20   conditions for SCNC members that existed at the time of his

21   merits hearing, rather than materially changed conditions or

22   circumstances.   See Jian Hui Shao, 546 F.3d at 169.

                                    5
1        We further conclude that the BIA did not abuse its

2    discretion in finding no material change in country conditions

3    based on Enoh’s individualized evidence.    The BIA properly

4    observed that the SCNC member statements were not new or

5    previously unavailable because, with the exception of the

6    account of the police’s recent efforts to locate Enoh, they

7    described events that occurred before Enoh’s merits hearing in

8    2010.    See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

9    § 1003.2(c)(3)(ii).    The BIA also properly declined to credit

10   the representations in the statements of the SCNC members and

11   Enoh’s family about the police’s recent search for him based

12   on the underlying adverse credibility determination.    See Qin

13   Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir. 2007)

14   (holding that the agency may properly conclude that a prior

15   adverse credibility determination undermines the authenticity

16   of documentary evidence filed in support of a motion to reopen);

17   see also Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We

18   generally defer to the agency’s evaluation of the weight to be

19   afforded an applicant’s documentary evidence.”).

20       Accordingly, we find no abuse of discretion in the BIA’s

21   denial of Enoh’s motion to reopen with respect to his SCNC-based

22   claim.

                                    6
1    II. Motion to Reconsider

2        Finally, we deny the petition to the extent that it

3    challenges the BIA’s denial of reconsideration of the

4    immigration judge’s adverse credibility determination.    See 8

5    C.F.R. § 1003.2(b)(1)-(2); Ke Zhen Zhao v. U.S. Dep’t of

6    Justice, 265 F.3d 83, 90 (2d Cir. 2001).    Enoh’s August 2015

7    motion to reconsider was filed more than 30 days after the BIA’s

8    2014 decision affirming the adverse credibility determination.

9    Accordingly, the BIA did not abuse its discretion in denying

10   the motion as untimely.

11       For the foregoing reasons, the petition for review is

12   GRANTED in part, DENIED in part, and the case is REMANDED for

13   further proceedings consistent with this order.     As we have

14   completed our review, any stay of removal that the Court

15   previously granted in this petition is VACATED, and any pending

16   motion for a stay of removal in this petition is DISMISSED as

17   moot.   Any pending request for oral argument in this petition

18   is DENIED in accordance with Federal Rule of Appellate Procedure

19   34(a)(2), and Second Circuit Local Rule 34.1(b).

20                                FOR THE COURT:
21                                Catherine O’Hagan Wolfe, Clerk




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