MacElara v. Lynch ( 2015 )

14-1243
Macelara v. Lynch
BIA
A028 906 621
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 25th day of June, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PIERRE N. LEVAL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 SKUMBIN MACELARA,
14 Petitioner,
15
16 v. 14-1243
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael P. Diraimondo; Marialaina
24 L. Masi; Stacy A. Huber, DiRaimondo
25 & Masi, LLP, Melville, New York.
26
27 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
28 Attorney General; John W.
29 Blakeley, Assistant Director; Dawn
30 S. Conrad, Trial Attorney, Office
1 of Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Skumbin Macelara, a native and citizen of the
10 former Yugoslavia and an ethnic Albanian from Macedonia, seeks
11 review of a March 31, 2014, decision of the BIA denying his
12 motion to reopen. In re Skumbin Macelara, No. A028 906 621
13 (B.I.A. Mar. 31, 2014). We assume the parties’ familiarity
14 with the underlying facts and procedural history in this case.
15 We review the BIA’s denial of a motion to reopen for abuse
16 of discretion, mindful of the Supreme Court’s admonition that
17 such motions are “disfavored.” Ali v. Gonzales, 448 F.3d 515,
18 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23
19 (1992)). An alien seeking to reopen proceedings is required
20 to file a motion to reopen no later than ninety days after the
21 date on which the final administrative decision was rendered
22 and may file only one such motion. 8 U.S.C.
23 § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). There is no
2
1 dispute that Macelara’s 2014 motion was time and number barred
2 because he previously sought reopening in both 1996 and 2011,
3 and his order of removal became final in 1996. 8 U.S.C.
4 § 1101(a)(47)(B)(i).
5 There is no time limit, however, for filing a motion to
6 reopen to apply for asylum and withholding of removal if it is
7 “based on changed country conditions arising in the country of
8 nationality or the country to which removal has been ordered,
9 if such evidence is material and was not available and would
10 not have been discovered or presented at the previous hearing.”
11 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
12 § 1003.2(c)(3)(ii). When the BIA considers relevant evidence
13 of country conditions in evaluating a motion to reopen, we
14 review those factual findings under the substantial evidence
15 standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.
16 2008).
17 The BIA did not abuse its discretion in denying Macelara’s
18 motion as untimely because substantial evidence supports its
19 finding that Macelara did not establish materially changed
20 conditions in Macedonia. Macelara’s central argument is that
21 the BIA abused its discretion in finding the expert affidavit
3
1 from Dr. Fischer (“Fischer affidavit”) insufficient to
2 establish changed conditions in Macedonia. He quotes several
3 sections of the Fischer affidavit, which state that country
4 conditions have worsened and describe specific incidents.
5 However, the affidavit also describes ethnic tensions in
6 Macedonia as ongoing throughout the region’s history. Under
7 these circumstances, we defer to the BIA’s evaluation of the
8 record evidence. See Xiao Ji Chen v. U.S. Dep’t of Justice,
9 471 F.3d 315, 342 (2d Cir. 2006); see also Jian Hui Shao, 546
10 F.3d at 169. Furthermore, Dr. Fischer’s current affidavit is
11 substantially the same as his 2011 affidavit, except that it
12 highlights certain incidents that occurred after Macelara’s
13 2011 motion.
14 Macelara argues that the BIA abused its discretion by
15 failing to “consider all of the evidence submitted” and that
16 the Fischer affidavit should have been read in conjunction with
17 that other evidence. This argument lacks merit because the BIA
18 not only explicitly analyzed the Fischer affidavit, noting its
19 “extensive discussion of historical events in what is now
20 Macedonia,” but concluded that the “evidence submitted” did not
21 demonstrate a change in conditions. See Wei Guang Wang v. BIA,
4
1 437 F.3d 270, 275 (2d Cir. 2006); see also Xiao Ji Chen, 471
2 F.3d at 337 n.17. Moreover, while the BIA did not expressly
3 discuss Macelara’s other country conditions evidence, it was
4 not obligated to do so. See Zhi Yun Gao v. Mukasey, 508 F.3d
5 86, 87 (2d Cir. 2007). Regardless, the remaining background
6 evidence supports the BIA’s decision that conditions have not
7 materially changed in Macedonia.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O=Hagan Wolfe, Clerk
5