         11-4508
         Jallow v. Holder
                                                                                       BIA
                                                                               A073 596 417
                              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 30th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                RICHARD C. WESLEY,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       MOMODOU JALLOW,
14
15                          Petitioner,
16
17                          v.                                  11-4508
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21
22                          Respondent.
23
24       _____________________________________
25
26       FOR PETITIONER:                   Gerald Karikari, New York, NY.
27
28       FOR RESPONDENT:                   Stuart F. Delery, Acting Assistant
29                                         Attorney General; Keith I. McManus,
30                                         Senior Litigation Counsel; Joseph A.
 1                          O’Connell, Trial Attorney, Office of
 2                          Immigration Litigation, Civil
 3                          Division, United States Department
 4                          of Justice, Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   review is DENIED.

10       Momodou Jallow, a native and citizen of The Gambia,

11   seeks review of a September 29, 2011, order of the BIA

12   denying his motion to reopen.       In re Momodou Jallow, No.

13   A073 596 417 (B.I.A. Sept. 29, 2011).      We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history of this case.      We review the BIA’s denial

16   of a motion to reopen for abuse of discretion.       See Kaur v.

17   BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).        We find

18   no abuse of discretion in this case.

19       Jallow contends that the time limitation on his motion

20   should have been equitably tolled by the ineffective

21   assistance of his former attorney, who failed to file an

22   appeal brief before the BIA.    While equitable tolling is

23   available based on ineffective assistance, Iavorski v. INS,

24   232 F.3d 124, 134 (2d Cir. 2000), a petitioner must also

25   demonstrate, inter alia, that he exercised due diligence in

                                     2
 1   pursuing his case during the period in which he seeks to

 2   toll, Jin Bo Zhao v. INS, 452 F.3d 154, 158-59 (2d Cir.

 3   2006) (per curiam).   As Jallow provided no evidence that he

 4   exercised due diligence, the BIA did not abuse its

 5   discretion in declining to equitably toll the period for

 6   filing a motion to reopen.

 7       Nor did the BIA err in finding that Jallow failed to

 8   establish changed conditions in The Gambia to excuse his

 9   untimely filing because his evidence does not show an

10   increase in the prevalence of female genital mutilation

11   since the time of his last hearing.    See Matter of S-Y-G-,

12   24 I&N Dec. 247, 253 (BIA 2007) (“[W]e compare the evidence

13   of country conditions submitted with the motion to those

14   that existed at the time of the merits hearing below.”).

15       In addition, birth of Jallow’s children in the United

16   States was a change in personal circumstances, not a change

17   of conditions “arising in” The Gambia.    See

18   8 C.F.R. § 1003.2(c)(3)(ii); see also Wei Guang Wang v. BIA,

19   437 F.3d 270, 273-74 (2d Cir. 2006).

20       Finally, we lack jurisdiction to review Jallow’s

21   challenge to the underlying adverse credibility

22   determination.   See Kaur, 413 F.3d at 233.


                                   3
 1       For the foregoing reasons, the petition for review is

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

 3   removal that the Court previously granted in this petition

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

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

 6   oral argument in this petition is DENIED in accordance with

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

 8   Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11




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