     16-925
     Yalcin v. Sessions
                                                                                       BIA
                                                                               A074 856 144
                               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   8th day of February , two thousand eighteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            ROBERT D. SACK,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   ALI YALCIN,
14            Petitioner,
15
16                        v.                                         16-925
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                      Elyssa N. Williams, Formica
24                                        Williams, P.C., New Haven, CT.
25
26   FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
27                                        Assistant Attorney General;
28                                        Jennifer P. Levings, Senior
29                                        Litigation Counsel; Monica Antoun,
30                                        Trial Attorney, Office of
31                                        Immigration Litigation, United
32                                        States Department of Justice,
33                                        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   DENIED.

 5       Petitioner Ali Yalcin, a native and citizen of Turkey,

 6   seeks review of a February 29, 2015, decision of the BIA denying

7    his motion to reopen.   In re Ali Yalcin, No. A074 856 144 (B.I.A.

8    Feb. 29, 2015).   We assume the parties’ familiarity with the

9    underlying facts and procedural history in this case.

10       When an alien, such as Yalcin, petitions for review of the

11   denial of a motion to reopen, we review only the denial of the

12   motion, not the agency’s underlying decisions.           Paul v.

13   Gonzales, 444 F.3d 148, 153 (2d Cir. 2006).     The BIA “may deny

14   a motion to reopen based upon the failure to establish a prima

15   facie case for the relief sought.”     Matter of Coelho, 20 I. &

16   N. Dec. 464, 472 (BIA 1992) (citations omitted); see also INS

17   v. Abudu, 485 U.S. 94, 104 (1988).     We review the BIA’s denial

18   of a motion to reopen for “abuse of discretion, mindful that

19   motions to reopen ‘are disfavored.’”    Ali v. Gonzales, 448 F.3d

20   515, 517 (2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314,

21   323 (1992)).   “An abuse of discretion may be found in those

22   circumstances where the Board’s decision provides no rational


                                     2
 1   explanation, inexplicably departs from established policies,

 2   is devoid of any reasoning, or contains only summary or

 3   conclusory statements; that is to say, where the Board has acted

 4   in an arbitrary and capricious manner.”           Kaur v. BIA, 413 F.3d

 5   232, 233–34 (2d Cir. 2005) (citation omitted).

6         The BIA was within its discretion to find that Yalcin failed

7    to establish his prima facie eligibility for asylum.               The IJ’s

8    adverse   credibility      determination     was    based     on   several

9    inconsistencies     between       Yalcin’s        asylum     application,

10   supporting statement, and testimony regarding his affiliation

11   with--or opposition to--a Kurdish political faction and his

12   run-ins with Turkish law enforcement.                That finding was

13   dispositive of Yalcin’s claims for asylum, withholding of

14   removal, and CAT relief.     Paul v. Gonzales, 444 F.3d 148, 156-57

15   (2d Cir. 2006) (explaining that if the same factual assertions

16   supported   all   claims    for   relief,    an    adverse    credibility

17   determination necessarily foreclosed relief on all claims).

18   The BIA reasonably concluded that evidence of heightened

19   tensions between the Kurdish faction, the Turkish government,

20   and ISIS “was not ‘material’ because it did not rebut the adverse

21   credibility finding that provided the basis for the IJ’s denial

22   of [Yalcin’s] underlying asylum application.”              Kaur, 413 F.3d


                                        3
1    at 234 (citation omitted).

2        Yalcin argues that the BIA could not rely on an adverse

3    credibility determination that it has never reviewed.     The law

4    does not support this argument.    See id. (noting that review

5    was limited to the denial of reopening because Kaur failed to

6    timely petition for review of the BIA’s decision affirming an

7    IJ’s adverse credibility determination).

8        Yalcin also submits that the BIA failed to acknowledge the

9    statutory exception to the 90-day time limitation for motions

10   to reopen based on changed country conditions.       See 8 U.S.C.

11   § 1229a(c)(7)(C)(i);    8 C.F.R.   § 1003.2(c)(2).      Not   so:

12   although the BIA referenced that exception in its decision, the

13   BIA ultimately relied on Yalcin’s failure to show prima facie

14   eligibility for asylum as the basis for its decision to deny

15   Yalcin’s motion to reopen.    The BIA was entitled to do so.

16   Abudu, 485 U.S. at 104.

17       For the foregoing reasons, the petition for review is

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

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

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

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

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


                                    4
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




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