    16-8
    Choudhury v. Barr
                                                                                  BIA
                                                                          Van Wyke, IJ
                                                                          A070 651 046
                             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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 21st day of November, two thousand nineteen.

    PRESENT:
             ROBERT A. KATZMANN,
             RAYMOND J. LOHIER, JR.,
             RICHARD J. SULLIVAN,
                  Circuit Judges.
    _____________________________________

    OIES AHMED CHOUDHURY,
             Petitioner,

                        v.                                       16-8
                                                                 NAC
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                     Oies Ahmed Choudhury, pro se, New
                                        York, NY.

    FOR RESPONDENT:                     Joseph A. Hunt, Assistant
                                        Attorney General; Melissa Neiman-
                                        Kelting, Assistant Director;
                                        Allison Frayer, Trial Attorney,
                                        Office of Immigration Litigation,
                                        United States Department of
                                        Justice, Washington, DC.
       UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

       Petitioner Oies Ahmed Choudhury, a citizen of Bangladesh,

seeks review of a December 7, 2015, decision of the BIA

affirming an August 11, 2014, decision of an Immigration Judge

(“IJ”) denying his motion to reopen.         In re Choudhury, No. A

070 651 046 (B.I.A. Dec. 7, 2015), aff’g No. A 070 651 046

(Immig. Ct. N.Y. City Aug. 11, 2014).        We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

       Under the circumstances of this case, we have reviewed

both    the   IJ’s    and    BIA’s   decisions   “for   the   sake   of

completeness.”       Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

524, 528 (2d Cir. 2006).          We review the denial of a motion

to reopen for abuse of discretion.        Ali v. Gonzales, 448 F.3d

515, 517 (2d Cir. 2006).         When the agency considers relevant

evidence of country conditions in evaluating a motion to

reopen, we review its factual findings under the substantial

evidence standard.          See Jian Hui Shao v. Mukasey, 546 F.3d

138, 169 (2d Cir. 2008).


                                     2
       An alien seeking to reopen his or her removal proceedings

may file one motion to reopen within 90 days of the final

administrative      order   in   those    proceedings.           8 U.S.C.

§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.23(b)(1).                It is

undisputed that Choudhury’s 2014 motion was untimely because

he accepted an order of voluntary departure in 1998.                   The

time limitation for filing a motion to reopen does not apply,

however, if the basis of the motion is to apply for asylum

“based on changed country conditions arising in the country

of nationality or the country to which removal has been

ordered, if such evidence is material and was not available

and would not have been discovered or presented at the

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

also     8 C.F.R.   § 1003.23(b)(4)(i).          Here,   the     agency’s

determination that Choudhury failed to establish a material

change    in   country   conditions,     which    was    based    on   its

consideration of the relevant evidence in the record, was

supported by substantial evidence.          See Jian Hui Shao, 546

F.3d at 169.    Choudhury’s prior asylum claim was premised on

evidence that the Bangladesh Nationalist Party (“BNP”) had

targeted him because of his membership in the Jatiya Party.

In support of his motion to reopen, meanwhile, Choudhury


                                  3
attempted to demonstrate changed conditions by alleging that

a member of a third political party, the Awami League, had

been elected Prime Minister in 2008 and that in 2013, police

arrested political opponents of the Awami League.                  The IJ and

BIA reasonably determined from the record, including the

State Department’s 2013 Country Report for Bangladesh, that

those arrested were members of the BNP, not the Jatiya party.

Indeed, the State Department report identified the BNP as the

opposition to the Awami League and noted the arrest of 150

BNP members.     The report did not even mention the Jatiya

Party, nor did Choudhury explain how the election and the

arrests   affected    him   as    a   member    of       the   Jatiya   party.

Accordingly,    the   agency      reasonably         concluded       that   the

evidence was insufficient to demonstrate a material change in

country   conditions.       See       8   U.S.C.     §    1229a(c)(7)(C)(i)

(requiring evidence of changed circumstances to be “material”

to asylum eligibility).1

      Choudhury argues for the first time in this Court that

his   counsel   was    ineffective         in   his       original      removal


1    To the extent that Choudhury challenges the agency’s
decision not to grant reopening sua sponte under 8 C.F.R.
§ 1003.2(a), we lack jurisdiction to review that “entirely
discretionary” decision. Ali v. Gonzales, 448 F.3d 515, 518
(2d Cir. 2006).

                                      4
proceedings, that he was politically active in the United

States, and that he received threatening notes while in the

United States.    But we will not find an abuse of discretion

based on arguments Choudhury did not exhaust before the IJ or

the BIA.    See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

104, 122–23 (2d Cir. 2007).2

    For the foregoing reasons, the petition for review is

DENIED.    As we have completed our review, Choudhury’s pending

motion for a stay of removal is DISMISSED as moot.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe,
                               Clerk of Court




2    Our conclusion that Choudhury failed to exhaust his claim
of ineffective assistance of counsel extends only to his
counsel’s performance in the original removal proceedings.
Choudhury, proceeding pro se in this Court, does not challenge
his counsel’s performance in connection with the motion to
reopen below, and appropriately so: the better vehicle to
raise any such claim would be a second motion to reopen. See
Zhao v. INS, 452 F.3d 154, 159 (2d Cir. 2006).

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