Dialingana v. Attorney General of United States
Dialingana v. Attorney General of United States
Opinion of the Court
OPINION
Petitioner Kiangana Dialungana
Dialungana entered the country in December 2002 as a sixteen-year-old stowaway and the INS arrested him at the port in New Orleans. Dialungana filed for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Before the immigration judge (“IJ”) he testified that he fled the Congo after he accidentally killed two police officers during a driving lesson. After Dia-lungana arrived in the United States, he learned from his mother that the police came to his house and shot at it until it collapsed, shooting his eight-year-old brother in the process. He also testified that the police went to the hospital and severely beat his ill father, who died the next day. The IJ, denying all forms of relief, found Dialungana not credible. (A.R. 188-140.) On February 27, 2004, the BIA affirmed the IJ’s decision and dismissed the appeal. (Id at 104.) Dialun-gana did not seek a petition for review in this Court.
On March 17, 2008, Dialungana filed a motion to reopen his removal proceedings alleging changed conditions in Congo and ineffective assistance of counsel. The BIA, finding that Dialungana offered only generalized evidence of country conditions and not specific evidence regarding the likelihood that he would be subject to persecution in the Congo, denied the motion. (Id at 2-3.) Dialungana filed a timely petition for review in this Court challenging the BIA’s order.
We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). We will uphold the BIA’s factual determinations so long as “they are ‘supported by reasonable, substantial, and probative evidence on the record as a whole.’ ” Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir. 2009) (quoting INS v. Elias-Zacarías, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
Motions to reopen are generally required to be filed with the BIA “no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). The deadline does not apply to motions that rely on evidence of “changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). Here, Dialungana did not file the motion to reopen within the 90-day window; therefore, he must show changed country conditions
Dialungana focuses his argument on his eligibility for protection under the CAT.
For the foregoing reasons, we will deny the petition for review.
. While the official caption identifies petitioner as “Dialingana,” we will refer to him as "Dialungana” per his request in his supplemental opening brief. (Appellant's Supp. Br. at 2.)
. Dialungana does not raise any arguments regarding ineffective assistance of counsel in his opening brief. Accordingly, this claim is waived. Singh v. Gonzales, 406 F.3d 191, 196 n. 5 (3d Cir. 2005).
. On September 15, 2009, Dialungana filed a motion which we construed as a motion to stay his petition for review until the BIA ruled on a motion to reopen he filed on September 14, 2009. We granted the motion pending the BIA’s ruling. The BIA denied the motion to reopen'and our stay is now vacated.
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