         11-4942
         Sherpa v. Holder
                                                                                       BIA
                                                                               A099 928 380
                             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 3rd day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       GELJEN SHERPA,
14                Petitioner,
15
16                          v.                                  11-4942
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Ramesh Shrestha, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Holly M. Smith,
27                                     Senior Litigation Counsel; Remi Da
28                                     Rocha-Afodu, Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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       Geljen Sherpa, a native and citizen of Nepal, seeks

 6   review of a November 4, 2011, decision of the BIA denying

 7   his motion to reopen.    In re Geljen Sherpa, No. A099 928 380

 8   (B.I.A. Nov. 4, 2011).     We assume the parties’ familiarity

 9   with the underlying facts and procedural history of this

10   case.

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

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

13   (2d Cir. 2006) (per curiam).     An alien may file only one

14   motion to reopen and must do so within 90 days of the

15   agency’s final administrative decision.     8 U.S.C.

16   § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).        Although

17   Sherpa’s motion was indisputably untimely because it was

18   filed more than two years after the agency’s final order of

19   removal, there is no time limitation if the motion is “based

20   on changed country conditions arising in the country of

21   nationality or the country to which removal has been

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

23   and would not have been discovered or presented at the

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 1   previous proceeding.”   8 U.S.C. § 1229a(c)(7)(C)(ii); see

 2   also 8 C.F.R. § 1003.2(c)(3)(ii).

 3       We find no error in the BIA’s conclusion that Sherpa

 4   failed to demonstrate materially changed conditions that

 5   would excuse the untimely filing, as the record evidence did

 6   not indicate a change in conditions in Nepal, but rather

 7   reflected a continuation of instability caused by the

 8   Maoists, which existed at the time of Sherpa’s merits

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

10   § 1003.2(c)(3)(ii); Matter of S-Y-G-, 24 I&N Dec. 247, 253

11   (BIA 2007) (noting that in evaluating evidence of changed

12   country conditions, the BIA “compare[s] the evidence of

13   country conditions submitted with the motion to those that

14   existed at the time of the merits hearing below”); see also

15   Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where

16   there are two permissible views of the evidence, the

17   factfinder’s choice between them cannot be clearly

18   erroneous.”).

19       Nor did the BIA abuse its discretion in declining to

20   give probative weight to Sherpa’s documents submitted in

21   support of his motion, as the IJ had questioned Sherpa’s

22   credibility in the underlying proceedings and the documents


                                   3
 1   were not authenticated by any means.     See Zheng v. Gonzales,

 2   500 F.3d 143,146-49 (2d Cir. 2007) (relying on the doctrine

 3   of falsus in uno, falsus in omnibus to conclude that the

 4   agency may decline to credit documentary evidence submitted

 5   with a motion to reopen by an alien who was found not

 6   credible in the underlying proceeding); Xiao Ji Chen v. U.S.

 7   Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding

 8   that the weight afforded to the applicant’s evidence in

 9   immigration proceedings lies largely within the discretion

10   of the agency); Cao He Lin v. U.S. Dep’t of Justice, 428

11   F.3d 391, 404 (2d Cir. 2005).

12        Accordingly, the BIA did not abuse its discretion in

13   denying Sherpa’s motion to reopen.     See 8 U.S.C.

14   § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii); see also Jian

15   Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2006).

16       For the foregoing reasons, the petition for review is

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

18   removal that the Court previously granted in this petition

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

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

21

22



                                     4
1   oral argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




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