Molic v. Holder ( 2012 )

11-1584-ag
Molic v. Holder
BIA
A075 862 164
A075 862 165
A075 862 166
A075 862 167
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 25th day of September, two thousand twelve.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_____________________________________
DZAVID MOLIC, MERITA MOLIC, ADMIR
MOLIC, EDON MOLIC,
Petitioners,
v. 11-1584-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Andrew P. Johnson, Esq., New York,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Lyle D. Jentzer, Senior
Litigation Counsel; Paul F. Stone,
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 Dzavid, Merita, Admir, and Edon Molic,
natives of the former Federal Republic of Yugoslavia, seek
review of the March 30, 2011 order of the BIA denying their
motion to reopen. In re Molic et al., No. A075 862
164/65/66/67 (B.I.A. Mar. 30, 2011). We assume the parties’
familiarity with the underlying facts and procedural history
of the case. We review the BIA’s denial of a motion to
reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d
232, 233 (2d Cir. 2005) (per curiam).
The BIA’s denial of Petitioners’ motion to reopen as
untimely was not an abuse of discretion. See Kaur, 413 F.3d
at 233. An alien seeking to reopen proceedings may file one
motion to reopen no later than 90 days after the date on
which the final administrative decision was rendered.
See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
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There is no dispute that Petitioners’ July 2010 motion was
untimely, as the BIA’s final administrative decision was
issued in 2003. See id. The time limitation does not apply
to a motion to reopen if it is “based on changed
circumstances arising in the country of nationality or in
the country to which deportation has been ordered, if such
evidence is material and was not available and could not
have been discovered or presented at the previous hearing.”
8 C.F.R. § 1003.2(c)(3)(ii); see 8 U.S.C.
§ 1229a(c)(7)(C)(ii). However, the BIA’s finding that
Petitioners failed to demonstrate changed country conditions
is supported by substantial evidence. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
Petitioners do not contend that they demonstrated an
increased risk of persecution in Kosovo on account of their
Albanian ethnicity, a claim dismissed by the IJ in their
initial proceedings. Nor do they challenge the BIA’s
finding that Dzavid’s eligibility for adjustment of status
is not a basis for reopening his proceedings. Rather, they
assert only that the BIA failed expressly to address
evidence that they face renewed threats due to their
Albanian ethnicity and Serbian extremists’ perception that
they supported Montenegro’s independence. We are not
persuaded.
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The BIA explicitly addressed each piece of evidence
proffered by Petitioners to demonstrate future harm, and
reasonably found that the evidence did not show that
Petitioners faced future persecution in Montenegro. As the
BIA noted, the 2008 Amnesty International article stated
that conditions in Montenegro had changed with its
declaration of independence in 2006, but did not mention any
mistreatment of ethnic Albanians or persons who supported
independence. Moreover, the article indicated that the
Montenegrin government prosecutes cases of discrimination,
thereby undermining Petitioners’ suggestion that the
government is unable or unwilling to protect them. See
Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir. 2006) (stating
that “persecution” involves harm inflicted either by
government of country or by persons or organization that
government is unable or unwilling to control).
The affidavits Petitioners submitted do not contradict
the background evidence. Because the 2002 attack against
Dzavid’s sister predated the 2006 declaration of
independence, it cannot reasonably be considered to
constitute evidence of current conditions in Montenegro.
See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3)(ii). As to the threats Dzavid’s sister
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allegedly received, the BIA reasonably found that while a
different person’s affidavit speculated that the threats
came from Serbian extremists, the sister’s affidavit stated
that the persons who had threatened her were “unidentified”
and had not revealed their motivations. Because the BIA
reasonably found that Petitioners failed to establish
changed conditions arising in Montenegro, it did not abuse
its discretion in denying their motion as untimely. See 8
U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Ke
Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 97 (2d Cir.
2001).
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
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