Vushaj-Cekoj v. Holder ( 2013 )

12-940
Vushaj-Cekoj v. Holder
BIA
A094 927 369
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 1st day of April, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 VILSON VUSHAJ-CEKOJ,
14 Petitioner,
15
16 v. 12-940
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael P. DiRaimondo, DiRaimondo &
24 Masi, LLP, Melville, N.Y.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Leslie McKay,
28 Assistant Director; Lori B. Warlick,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Vilson Vushaj-Cekoj, a native and citizen of
6 Albania, seeks review of a February 10, 2012, decision of
7 the BIA denying his motion to reopen his removal
8 proceedings. In re Vilson Vushaj-Cekoj, No. A094 927 369
9 (B.I.A. Feb. 10, 2012). We assume the parties’ familiarity
10 with the underlying facts and procedural history in this
11 case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
14 (2d Cir. 2006) (per curiam). The agency may properly deny a
15 motion to reopen where the movant fails to establish a prima
16 facie case for the underlying substantive relief sought.
17 See INS v. Abudu, 485 U.S. 94, 104 (1988). The BIA may also
18 properly deny reopening where the movant fails to comply
19 with the regulatory requirements governing motions to
20 reopen. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen
21 proceedings for the purpose of submitting an application for
22 relief must be accompanied by the appropriate application
23 for relief and all supporting documentation.”) (emphasis
24 added).
2
1 Contrary to Vushaj-Cekoj’s assertion, the BIA did not
2 abuse its discretion in denying his motion for failure to
3 comply with the governing regulatory requirements because
4 his motion was not supported with a new asylum application.
5 See 8 C.F.R. § 1003.2(c)(1). Regardless, even giving
6 Vushaj-Cekoj the benefit of the representations contained in
7 his original application, the BIA did not abuse its
8 discretion in finding that he failed to establish his prima
9 facie eligibility for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). See
11 Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008).
12 Indeed, Vushaj-Cekoj did not assert that he had received any
13 threats since 2005, and the BIA’s previous determination
14 that he did not suffer past persecution, on the basis of his
15 minor custodial beating and receipt of anonymous threatening
16 letters, was reasonable. See Ivanishvili v. U.S. Dep’t of
17 Justice, 433 F.3d 332, 342 (2d Cir. 2006); see also Jian Qiu
18 Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011); Gui Ci Pan
19 v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006).
20 Moreover, while Vushaj-Cekoj submitted a report from
21 Dr. Bernd Fischer, a professor and chair of history at
22 Indiana University, Fort Wayne, which opined that
3
1 Vushaj-Cekoj had good reason to fear a threat to his safety
2 should he be forced to return to Albania, the BIA reasonably
3 determined that this evidence did not reflect that any
4 individuals in Albania had expressed any interest in
5 Vushaj-Cekoj since he had left the country in 2006. See
6 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d
7 Cir. 2006); see also Jian Xing Huang v. INS, 421 F.3d 125,
8 128-29 (2d Cir. 2005); Matter of M-B-A-, 23 I. & N. Dec.
9 474, 479-80 (B.I.A. 2002). As a result, the BIA did not err
10 denying Vushaj-Cekoj’s untimely motion for failure to
11 demonstrate his prima facie eligibility for relief.
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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