                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 September 2, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                              FOR THE TENTH CIRCUIT




    UJJAL KARMACHARYA,

                Petitioner,

    v.                                                    No. 09-9566
                                                      (Petition for Review)
    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and HOLMES, Circuit Judges.



         Ujjal Karmacharya, a native and citizen of Nepal, seeks judicial review of a

Board of Immigration Appeals’ (“BIA”) decision denying his motion to reopen

removal proceedings. We deny the petition for review.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I

      Karmacharya entered the United States in 2005 on a B-2 visitor visa and

overstayed his visit. Although he conceded he was removable, see 8 U.S.C.

§ 1227(a)(1)(B), Karmacharya applied for asylum, restriction on removal, and

relief under the Convention Against Torture, claiming that he was persecuted by

the police and the Communist Party of Nepal (“Maoists”). In April 2007, an

immigration judge (IJ) held a hearing and found there were several substantial

inconsistencies between Karmacharya’s testimony, his asylum application, and a

statement he gave to an asylum officer. Based on this adverse credibility finding,

the IJ denied relief. Karmacharya appealed, but on July 28, 2008, the BIA

affirmed the IJ’s decision. In dismissing the appeal, the BIA also rejected

Karmacharya’s newly submitted evidence purporting to show changed conditions

in Nepal. The BIA reasoned that Karmacharya “failed to establish the materiality

of the newly submitted [evidence] regarding the Maoists’ political tactics . . .

because [he] did not establish that he is a known adversary of the Maoists (in

light of the [IJ’s] well-supported adverse credibility finding).” Admin. R. at 179.

      Karmacharya did not petition this court for review but instead moved the

BIA to reconsider its decision. The BIA denied the motion, noting that it was

“virtually identical” to a supplemental brief he filed on appeal. Id. at 158.

      Then on May 26, 2009, nearly ten months after the BIA issued its final

removal order, Karmacharya moved the BIA to reopen his case. He claimed

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conditions in Nepal had deteriorated since his removal hearing in 2007 because

the Maoists won control of the Nepalese parliament in 2008. Despite failing to

ever credibly establish he had been persecuted or feared persecution by the

Maoists, Karmacharya submitted an affidavit and various documents purporting to

show the power-shift and attendant threat posed by the Maoist-controlled

government. Rejecting the claim, the BIA concluded the evidence failed to show

“changed circumstances in Nepal sufficient to warrant a grant of [his] late-filed

motion.” Id. at 3. Thus, “[o]n that basis, and based upon the rationale set forth in

[its] prior decisions,” the BIA denied the motion to reopen. Id. Karmacharya

now seeks review of the denial of his motion to reopen.

                                         II

      “The BIA has broad discretion, conferred by the Attorney General, ‘to

grant or deny a motion to reopen.’” Kucana v. Holder, 130 S. Ct. 827, 838 (2010)

(quoting 8 C.F.R. § 1003.2(a)). “We have jurisdiction to review BIA orders

denying motions to reopen removal proceedings.” Wei v. Mukasey, 545 F.3d

1248, 1254 (10th Cir. 2008) (citation omitted). We review such orders “only for

an abuse of discretion,” which occurs when the agency’s decision “provides no

rational explanation, inexplicably departs from established policies, is devoid of

any reasoning, or contains only summary or conclusory statements.” Gurung v.

Ashcroft, 371 F.3d 718, 720 (10th Cir. 2004) (brackets and quotations omitted).




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      Generally, an alien is permitted to file one motion to reopen “within 90

days of the date of entry of a final administrative order of removal.” 8 U.S.C.

§ 1229a(c)(7)(C)(i); Rosillo-Puga v. Holder, 580 F.3d 1147, 1152 (10th Cir.

2009) (quotation omitted), petition for cert. filed, 78 U.S.L.W. 3670 (U.S. May 7,

2010) (No. 09-13). We have explained, however, that “a motion to reopen to

apply for asylum based on proof of changed country conditions is not barred by

the [ninety-day] time restriction . . . if ‘such evidence is material and was not

available and would not have been discovered or presented at the previous

proceeding.’” Wei, 545 F.3d at 1254 (quoting 8 U.S.C. § 1229a(c)(7)(C)(ii));

see also Kucana, 130 S. Ct. at 831 (“Among matters excepted from the 90-day

limitation are motions to reopen asylum applications because of changed

conditions in the country of nationality or removal.”).

      Because he filed his motion to reopen beyond the ninety-day limitation

period, Karmacharya attempts to avail himself of the exception provided by

§ 1229a(c)(7)(C)(ii). This provision is unavailing, however, because the evidence

underlying his motion is not material given Karmacharya’s failure to establish his

eligibility for relief. To be eligible for asylum, Karmacharya was required to

show he suffered past persecution or has “a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1101(a)(42)(A); Tulengkey v. Gonzales, 425 F.3d

1277, 1280 (10th Cir. 2005). Karmacharya never made this showing because the

                                          -4-
IJ discredited his testimony. Consequently, since Karmacharya failed to credibly

show grounds for asylum, the fact that the Maoists came to power is immaterial.

See Lemus v. Gonzales, 489 F.3d 399, 401 (1st Cir. 2007) (affirming denial of

motion to reopen based on changed conditions because “the newly proffered

information [did] nothing to rehabilitate the petitioner’s failed credibility”).

      Moreover, the evidence is not “materially different” from information

already before the BIA. See Wei, 545 F.3d at 1254; see also Zhao v. Gonzales,

440 F.3d 405, 407 (7th Cir. 2005) (“[C]umulative evidence that conditions

asserted in the original application persist[] is not evidence of changed

circumstances.” (quotation omitted)). Through his motion to reopen,

Karmacharya sought to introduce (1) his own affidavit attesting to instances of

mistreatment and the Maoist parliamentary take-over; (2) a 2008 State

Department human rights report on Nepal; (3) United Nations press releases;

(4) a press release from his political party expressing concern over an alleged

Maoist threat; (5) a police statement indicating Karmacharya’s wife had been

threatened; and (6) articles and statements discussing the ongoing political strife

in Nepal. Although these documents purport to substantiate Karmacharya’s

claims of deteriorating conditions in Nepal, particularly since the Maoist

take-over, he had argued throughout the entire administrative process that

conditions were worsening on account of Maoist political activity and their

involvement with the government. Indeed, before the IJ, Karmacharya testified

                                          -5-
that the Maoists were “in the government” and could “legally do anything they

want,” Admin. R. at 378. And in his brief to the BIA, he claimed “[t]he situation

in Nepal [had] worsened considerably” because the Maoists abandoned a peace

agreement. Id. at 222. He also attached to his appeal brief numerous articles

discussing the Maoists’ political tactics, all of which were considered and rejected

by the BIA. Because the BIA previously evaluated information pertaining to the

same problems upon which the motion to reopen was based, the BIA acted within

its discretion in refusing to reopen the case.

      Accordingly, the petition for review is DENIED.


                                                    Entered for the Court



                                                    Terrence L. O’Brien
                                                    Circuit Judge




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