Diemu Jean Paul MUDIANGOMBA, also known as John Kapya Paul Mulumba, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 401 F. App'x 600

SUMMARY ORDER Petitioner, Diemu Jean Paul Mudiangomba, allegedly a native and citizen of the Democratic Republic of Congo (“DRC”), seeks review of an October 16, 2009, decision of the BIA denying his motion to reopen his removal proceedings. In re Diemu Jean Paul Mudiangomba, No. [ AXXX XXX XXX ] (B.I.A. Oct. 16, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006).

After the July 2006 merits hearing, the IJ found that the Petitioner had failed to establish his Congolese identity, which defeated prima facie eligibility for relief. See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (“[A] petitioner’s nationality, or lack of nationality, is a threshold question in determining his eligibility for asylum.”) (internal quotation marks omitted). On the motion for rehearing, the BAD did not err in declining to consider Petitioner’s newly submitted identity documents. See INS v.

Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (recognizing that in an untimely motion to reopen based on changed country conditions, the movant must submit previously unavailable evidence demonstrating his prima facie eligibility for relief). As the BIA found, and Mudiangomba conceded before the BIA, the identity documents Mudiangomba submitted with his motion to reopen were not previously unavailable. Thus, the BIA reasonably declined to consider those documents in its evaluation of Mudiangomba’s motion to reopen. See id.

Accordingly, because Mudiangomba failed to successfully rebut the IJ’s dispositive identity determination and establish his prima facie eligibility for relief, the BIA did not abuse its discretion in denying his motion to reopen. We need not reach Mudiangomba’s arguments regarding the BIA’s determination that he failed to establish materially changed country conditions excusing the time limitation applicable to his motion to reopen. For the foregoing reasons, the petition for review is DENIED.

As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).