         09-0773-ag
         Ferdilus v. Holder
                                                                                       BIA
                                                                               A079 497 978

                                   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 26 th day of January, two thousand ten.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                ROBERT A. KATZMANN,
 9                BARRINGTON D. PARKER,
10                       Circuit Judges.
11       _______________________________________
12
13       ALONVY FERDILUS,
14                Petitioner,
15
16                            v.                                09-0773-ag
17                                                              NAC
18
19       ERIC H. HOLDER, Jr., U.S. ATTORNEY
20       GENERAL,
21                Respondent. 1
22       _______________________________________
23




                       1
                  The Clerk of the Court is directed to amend the
             official caption as set forth above.
 1   FOR PETITIONER:           Melinda M. Basaran, Paterson, New
 2                             Jersey
 3
 4   FOR RESPONDENT:           Tony West, Assistant Attorney
 5                             General, Barry J. Pettinato,
 6                             Assistant Director, John D.
 7                             Williams, Trial Attorney, Office of
 8                             Immigration Litigation, Civil
 9                             Division, United States Department
10                             of Justice, Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

13   decision of the Board of Immigration Appeals (“BIA”), it is

14   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

15   review is DENIED.

16       Petitioner Alonvy Ferdilus, a native and citizen of

17   Haiti, seeks review of a January 30, 2009 order of the BIA

18   denying his motion to reopen his removal proceedings.     In re

19   Alonvy Ferdilus, No. A079 497 978 (B.I.A. Jan. 30, 2009).

20   We assume the parties’ familiarity with the underlying facts

21   and procedural history of the case.

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

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

24   (2d Cir. 2006).     An alien who has been ordered removed may

25   file one motion to reopen, but must do so within 90 days of

26   the final administrative decision.     8 U.S.C. § 1229a(c)(7).

27   The 90-day filing deadline may be equitably tolled if the


                                     2
1    alien can establish “changed country conditions arising in

2    the country of nationality . . . if such evidence is

3    material and was not available and would not have been

4    discovered or presented at the previous proceeding.”

5    8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).

6    Here, Ferdilus’ motion to reopen was unquestionably untimely

7    because he filed it more than three years after his June

8    2005 final order of removal.   Thus, Ferdilus was required to

9    present previously unavailable, material evidence of changed

10   conditions in Haiti in order to avoid the time bar.

11       Ferdilus argues that the BIA abused its discretion by

12   failing to properly consider the evidence he submitted in

13   support of his motion to reopen.   However, the BIA is not

14   required to “expressly parse or refute on the record each

15   individual argument or piece of evidence offered by the

16   petitioner” as long as it “has given reasoned consideration

17   to the petition, and made adequate findings.”   Wei Guang

18   Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)(internal

19   quotation marks omitted).   A review of the record reveals

20   that the BIA reasonably considered the record evidence.      See

21   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337

22   n.17 (2d Cir. 2006).


                                    3
1        Furthermore, there is no merit to Ferdilus’ assertion

2    that changed country conditions in Haiti would result in him

3    being persecuted on account of his membership in a

4    “particular social group” – specifically, “Haitians

5    returning to the country after a long stay in the United

6    States . . . .”   See 8 C.F.R. § 1003.2(c)(3)(ii).    Putting

7    aside the question of whether that group is sufficiently

8    cognizable, see Koudriachova v. Gonzales, 490 F.3d 255, 261-

9    62 (2d Cir. 2007), the BIA reasonably found that the

10   evidence did not support a finding that Haitians returning

11   from the United States are targeted for crime and kidnaping,

12   or that any harm that might come to such individuals would

13   be different in kind than that faced by all citizens living

14   in a country wracked by violence and instability.     See

15   Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007).

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

17   Ferdilus’ untimely motion to reopen his removal proceedings

18   because he failed to establish a material change in

19   conditions in Haiti that would constitute an exception to

20   the time limitation for filing motions to reopen.

21       For the foregoing reasons, the petition for review is

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


                                   4
1    removal that the Court previously granted in this petition

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

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

4    oral argument in this petition is DENIED in accordance with

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

 6   Circuit Local Rule 34(b).
 7
 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe, Clerk
10
11
12
13




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