Avdijaj v. Holder , 457 F. App'x 39 ( 2012 )

10-1988-ag
Avdijaj v. Holder
BIA
A078 713 342
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 26th day of January, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 ______________________________________
12
13 FATON AVDIJAJ,
14 Petitioner,
15 10-1988-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Charles Christophe, New York,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; Bernard A.
29 Joseph, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
33
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, Faton Avdijaj, of unknown nationality,
6 seeks review of an April 23, 2010, decision of the BIA
7 denying his motion to reopen his removal proceedings. In re
8 Avdijaj, No. A078 713 342 (B.I.A. April 23, 2010). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). The BIA did not abuse its discretion in
14 denying Avdijaj’s motion to reopen as untimely. See id. A
15 motion to reopen must generally be filed no later than 90
16 days after the date on which the final administrative
17 decision was rendered in the proceedings sought to be
18 reopened. See 8 U.S.C. § 1229a(c)(7)(C). There is no
19 dispute that Avdijaj’s motion to reopen, filed in October
20 2009, more than five years after the BIA affirmed the IJ’s
21 denial of his asylum application, was untimely. See id.
22
2
1 Furthermore, the BIA did not abuse its discretion in
2 concluding that Avdijaj failed to submit material evidence
3 of changed country conditions as required to warrant
4 consideration of his untimely motion, see 8 U.S.C.
5 § 1229a(c)(7)(C)(ii), because the evidence he submitted did
6 not rebut the agency’s prior adverse credibility
7 determination, see Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.
8 2005). Contrary to Avdijaj’s contention, his apology for a
9 “lapse in judgment” in submitting a fraudulent asylum
10 application does not meaningfully address the adverse
11 credibility determination, which was based on multiple
12 alternative grounds, and is not before us in the instant
13 petition. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265
14 F.3d 83, 89-90 (2d Cir. 2001). Because the BIA did not
15 abuse its discretion in denying Avdijaj’s motion on the
16 grounds that he did not provide “material” evidence, i.e.,
17 evidence relevant to rebut the underlying adverse
18 credibility determination, see Kaur, 413 F.3d at 234, we
19 decline to reach the BIA’s alternative findings that he
20 failed to demonstrate changed country conditions or his
21 prima facie eligibility for CAT relief. See INS v. Abudu,
22 485 U.S. 94, 104-05 (1988) (recognizing that a movant’s
3
1 failure to produce material evidence is an independent basis
2 for the denial of a motion to reopen).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
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