Kuka v. Holder , 459 F. App'x 33 ( 2012 )

10-1050-ag
Kuka v. Holder
BIA
A078 690 281
A078 690 282
A078 690 283
A078 690 284
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 6th day of February, two thousand twelve.
PRESENT:
PETER W. HALL,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
_________________________________________
SHPETIM KUKA, LUZIME KUKA
MARSEL KUKA, ANGJELO KUKA,
Petitioners,
v. 10-1050-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Karin Jean Anderson Ponzer,
Sunnyside, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Mary Jane Candaux,
Assistant Director; Stefanie A.
Svoren, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioners Luzime Kuka, Shpetim Kuka, Marsel Kuka, and
Angjelo Kuka, natives and citizens of Albania, seek review
of a February 24, 2010, order of the BIA denying their
motion to reopen.* In re Shpetim Kuka, Luzime Kuka, Marsel
Kuka, Angjelo Kuka, Nos. A078 690 281/282/283/284 (B.I.A.
Feb. 24, 2010). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). An individual ordinarily may file only one
motion to reopen and must do so within 90 days of the final
administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C);
8 C.F.R. § 1003.2(c)(2). However, there is no time or
numerical limitation if the individual establishes
materially “changed country conditions arising in the
country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
also 8 C.F.R. § 1003.2(c)(3)(ii).
The BIA did not err in concluding that Luzime Kuka’s
(“Luzime”) motion to reopen was time- and number-barred.
See 8 U.S.C. § 1101(a)(47)(B)((i); (ii), see also Arias-
Chupina v. Holder, 570 F.3d 99, 103 (2d Cir. 2009). In
March 2001, Luzime was served with a Notice to Appear and,
as a derivative of her husband’s asylum claim, denied relief
*
Luzime Kuka brought a 2009 motion to reopen her 2007
final order of removal before the IJ as a derivative of her
husband’s (Shpetim) proceedings. In her 2009 motion she
requested that her proceedings be bifurcated. This request
was denied in the BIA’s February 2010 decision.
2
by an IJ in September 2002. Upon appeal to the BIA,
Luzime’s application listing her as a derivative was denied,
serving as her final order of removal and barring her from
filing a successive asylum application without demonstrating
changed country conditions as imposed by
8 U.S.C. § 1158(a)(2)(D). See Matter of C-W-L, 24 I. & N.
Dec. 346 (BIA 2007), Yuen Jin v. Mukasey, 538 F.3d 143, 156
(2d Cir. 2008).
Furthermore, the BIA reasonably found that the evidence
Luzime submitted of her 1999 assault was available to her at
the time of her 2000 hearing and “could and should have been
presented below if she wished to seek asylum based on her
own treatment.” See INS v. Abudu, 485 U.S. 94, 104-05
(1988) (failure to offer new evidence is a proper ground
upon which the BIA may deny a motion to reopen).
Additionally, the BIA reasonably concluded that Luzime
had failed to demonstrate materially changed country
conditions. As the record demonstrated a decrease in blood
feuds as well as government efforts to tackle blood feuds
“head on,” and as Luzime’s claim was based on facts
available to her at the time of her 2000 hearing, the BIA
reasonably concluded she had failed to demonstrate a change
in country conditions. See INS v. Abudu, 485 U.S. 94, 104-
05 (1988).
Moreover, the BIA did not err in determining that
Luzime’s uncorroborated assertion that her assault may
become known to her family who would then seek a blood feud
reprisal, was speculative. See Jian Xing Huang v. INS, 421
F.3d 125, 129 (2d Cir. 2005) (absent solid support in the
record, petitioner’s fear was “speculative at best.”).
This Court is without jurisdiction to review Luzime’s
argument that as a result of the BIA mailing its decision on
her February 2010 motion to reopen to her house, rather than
to her attorney, her confidentiality was breached. See Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-120 (2d
Cir. 2007) (finding the judicial exhaustion requirement
mandatory). The proper procedure to argue that such
disclosure “create[d] new grounds for [Luzime] to have a
well-founded fear of persecution” is in a motion to reopen
before the BIA. 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
3
8 C.F.R. § 1003.2(c)(3)(ii).
To the extent Luzime argues that the BIA breached its
obligation of confidentiality under 8 C.F.R. § 1208.6, this
argument is without merit, as Luzime’s husband and children
were listed as parties to her motion to reopen.
Accordingly, even assuming the BIA disclosed confidential
information, it was disclosed to parties to the litigation,
not to third-parties as covered in 8 C.F.R. § 1208.6. Cf
Zhen Nan Lin v. Dep’t of Justice, 459 F.3d 255, 262 (2d Cir.
2006) (finding the disclosure of identity documents of an
asylum seeker to a third-party government to be a breach of
confidentiality).
Finally, Luzime’s equal protection argument is
unavailing because she fails to demonstrate how she and
individuals who have been granted asylum are similarly
situated. See Yuen Jin v. Mukasey, 538 F.3d 143, 158-59 (2d
Cir. 2008) (rejecting equal protection challenge to
immigration status because the two classes of aliens being
compared were not similarly situated); Jankowski-Burcyzk v.
INS, 291 F.3d 172, 178 (2d Cir. 2002) (citing Able v. United
States, 155 F.3d 628, 631 (2d Cir. 1998 noting that the Due
Process Clause of the Fifth Amendment permits the government
to treat individuals not similarly situated differently).
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 DENIED 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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4