20-290 Hamida v. Garland BIA A076 134 193

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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 9th day of November, two thousand twenty- 5 one. 6 7 PRESENT: 8 JOSÉ A. CABRANES, 9 GERARD E. LYNCH, 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ 13 14 MOUMOUNI HAMIDA, 15 Petitioner, 16 17 v. 20-290 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Moumouni Hamida, pro se, New 25 York, NY. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; Derek 29 C. Julius, Assistant Director; 1 Anthony O. Pottinger, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a

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

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is DENIED.

11 Petitioner Moumouni Hamida, a native and citizen of

12 Niger, seeks review of a December 31, 2019, decision of the

13 BIA, denying his motion to reopen his removal proceedings. In

14 re Moumouni Hamida, No. A076 134 193 (B.I.A. Dec. 31, 2019).

15 We assume the parties’ familiarity with the underlying facts

16 and procedural history.

17 While we review the BIA’s denial of a motion to reopen

18 for abuse of discretion, we review the agency’s findings of

19 fact regarding changed country conditions for substantial

20 evidence. See Jian Hui Shao v. Mukasey,

, 168-69

21 (2d Cir. 2008). In his motion to reopen, Hamida asserted both

22 that he feared political persecution in Niger and that he and

23 his U.S. citizen children would be unable to access required

24 medical treatment in that country. 2 1 It is undisputed that Hamida’s 2019 motion was time

2 barred because he filed it more than 17 years after his

3 removal order became final in 2002. See 8 U.S.C.

4 § 1229a(c)(7)(C)(i);

(c)(2). Although the

5 time limit does not apply if reopening is sought to apply for

6 asylum “based on changed country conditions arising in the

7 country of nationality or the country to which removal has

8 been ordered,” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

9 § 1003.2(c)(3)(ii), the BIA did not err in finding that Hamida

10 failed to establish a material change in conditions in Niger.

11 Hamida’s motion emphasizes both his and his U.S. citizen

12 children’s medical conditions and the political conditions in

13 Niger. But Hamida’s and his U.S. citizen children’s medical

14 conditions are changes in personal circumstances that

15 occurred in the United States and do not excuse the applicable

16 time limitation. See Li Yong Zheng v. U.S. Dep’t of Justice,

17

(2d Cir. 2005). And while a letter from

18 Hamida’s cousin states that political conditions in Niger are

19 dangerous and that the healthcare available in the country is

20 inadequate, the letter does not establish that such

21 conditions constitute a change from the time of Hamida’s 1999 3 1 hearing. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also In re S-

2 Y-G-,

(B.I.A. 2007) (“In determining

3 whether evidence accompanying a motion to reopen demonstrates

4 a material change in country conditions that would justify

5 reopening, [the BIA] compare[s] the evidence of country

6 conditions submitted with the motion to those that existed at

7 the time of the merits hearing below.”). Accordingly, because

8 the BIA reasonably concluded that Hamida failed to

9 demonstrate a material change in conditions in Niger, it did

10 not abuse its discretion in denying his motion as untimely.

11 See 8 U.S.C. § 1229a(c)(7)(C).

12 We lack jurisdiction to review the BIA’s decision insofar

13 as it declined to reopen Hamida’s removal proceedings sua

14 sponte. See Ali v. Gonzales,

(2d Cir. 2006).

15 For the foregoing reasons, the petition for review is

16 DENIED. All pending motions and applications are DENIED and

17 stays VACATED.

18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court

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