Kimca v. Lynch ( 2015 )

13-3320
Kimca v. Lynch
BIA
A079 128 217
A079 128 218
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 15th day of May, two thousand fifteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 JOLA KIMCA, EJLDIN KIMCA,
14 Petitioners,
15
16 v. 13-3320
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.*
22 _____________________________________
23
24 FOR PETITIONERS: Kai W. De Graaf, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Carl McIntyre, Assistant
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr.
1 Director; Brooke Maurer, Trial
2 Attorney, Office of Immigration
3 Litigation, United States Department
4 of Justice, Washington, D.C.
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
8 is DENIED.
9 Petitioners Jola and Ejldin Kimca**, natives and
10 citizens of Albania, seek review of the August 27, 2013,
11 decision of the BIA denying their motion to reopen. In re
12 Jola Kimca, et al., Nos. A079 128 217/218 (B.I.A. Aug. 27,
13 2013). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 An alien seeking to reopen proceedings may file one
16 motion to reopen no later than 90 days after the date on
17 which the final administrative decision was rendered.
18 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
19 The BIA’s regulations prohibit it from reopening
20 proceedings for an alien who has departed. 8 C.F.R.
21 § 1003.2(d). This Court has narrowed that so-called
22 “departure bar” to sua sponte (i.e., regulatory) reopening.
**
The claims of Jola Kimca’s son, Ejldin, are entirely
derivative of her claim.
2
1 See Luna v. Holder, 637 F.3d 85, 100-02 (2d Cir.
2 2011)(invalidating departure bar with respect to statutory
3 motions to reopen); Zhang v. Holder, 617 F.3d 650, 655-65
4 (2d Cir. 2010) (upholding departure bar with respect to
5 regulatory reopening). So, an alien’s departure from the
6 United States does not prevent the agency from reopening
7 proceedings, but only if the alien’s motion to reopen is
8 meritorious, timely and not number barred. If, on the other
9 hand, the departed alien’s motion does not comply with the
10 statute (e.g., it is untimely or number barred), the
11 departure bar applies, and the agency lacks jurisdiction to
12 reopen sua sponte. See Luna, 637 F.3d at 100-02.
13 Here, there is no dispute that Kimca filed the motion
14 to reopen after departing the United States, and that her
15 motion was untimely as it was filed more than nine years
16 after the BIA's final administrative decision. See 8 U.S.C.
17 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The time and
18 number limitations do not apply to a motion to reopen if it
19 is “based on changed circumstances arising in the country of
20 nationality . . . if such evidence is material and was not
21 available and could not have been discovered or presented at
22 the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see
23 also 8 U.S.C. § 1229a(c)(7)(C)(ii).
3
1 Kimca argues that the BIA abused its discretion by
2 failing to consider new and material evidence of changed
3 conditions in Albania. We reject this argument as the BIA’s
4 decision expressly referenced that evidence.. . See Jian
5 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008)
6 (noting that the BIA does not need to expressly parse or
7 refute every piece of evidence submitted by the petitioner).
8 . The BIA did not abuse its discretion in determining that
9 evidence of an alleged blood feud was not material because
10 it described violence between two families that was criminal
11 in nature rather than politically motivated violence. See
12 Ndoci v. Holder, 448 F. App'x 141 (2d Cir. 2011) (evidence
13 of a blood feud in Albania did not constitute changed
14 country condition that would justify petitioner’s untimely
15 motion to reopen removal proceedings, where there was no
16 allegation of politically motivated or targeted violence,
17 and no evidence that Albanian government was unable or
18 unwilling to protect the petitioner); see also Melgar de
19 Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999)
20 (finding that general civil strife does not establish a
21 well-founded fear of persecution). In any event, Kimca did
22 not provide any evidence that the Albanian government was
4
1 unwilling to protect her from the blood feud. See
2 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d
3 Cir. 2006) (recognizing that private acts can give rise to
4 persecution if the government is shown unwilling to control
5 such actions). Accordingly, the BIA did not abuse its
6 discretion in denying Kimca's motion to reopen because her
7 evidence failed to establish changed country conditions.
8 See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §
9 1003.2(c)(3)(ii).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
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