Bektesevic v. Holder , 424 F. App'x 55 ( 2011 )

10-1443-ag
Bektesevic v. Holder
BIA
A078 710 584
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 15th day of June, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 ______________________________________
12
13 FIKRET BEKTESEVIC,
14 Petitioner,
15 10-1443-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Andrew P. Johnson, Law Offices of
24 Andrew P. Johnson, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Richard M. Evans, Assistant
29 Director; Jeffrey J. Bernstein,
30 Attorney, United States Department
31 of Justice, Office of Immigration
32 Litigation, Washington, D.C.
33
34
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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, Fikret Bektesevic, a native and citizen of
6 the former Yugoslavia, seeks review of a March 19, 2010,
7 decision of the BIA denying his motion to reopen his removal
8 proceedings. In re Fikret Bektesevic, No. A078 710 584
9 (B.I.A. March 19, 2010). We assume the parties’ familiarity
10 with the underlying facts and procedural history of the
11 case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
14 Cir. 2006). When the BIA considers relevant evidence of
15 country conditions in evaluating a motion to reopen, we
16 review the BIA’s factual findings under the substantial
17 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
18 138, 169 (2d Cir. 2008).
19 The BIA did not err in denying Bektesevic’s untimely
20 motion to reopen. “[A] party may file only one motion to
21 reopen deportation or exclusion proceedings . . . and that
22 motion must be filed no later than 90 days after the date on
23 which the final administrative decision was rendered in the
24 proceeding sought to be reopened, or on or before September
25 30, 1996, whichever is later.” 8 C.F.R. § 1003.2(c)(2).
2
1 Indisputably, Bektesevic’s September 2009 motion was
2 untimely because it was filed almost four years after the
3 BIA’s September 2005 decision dismissing his appeal. The
4 90-day filing deadline for motions to reopen does not apply,
5 however, if a motion is “based on changed circumstances
6 arising in the country of nationality . . . [and] if such
7 evidence is material and was not available and could not
8 have been discovered or presented at the previous hearing.”
9 8 C.F.R. § 1003.2(c)(3)(ii).
10 The BIA reasonably concluded that the evidence
11 Bektesevic submitted in support of his motion was not
12 material, and therefore could not meet the “heavy burden”
13 necessary to demonstrate that reopening was warranted. See
14 INS v. Abudu, 485 U.S. 94, 104-05 (1988).
15 In support of his motion, Bektesevic submitted a letter
16 from friends and family members stating that, as an ethnic
17 Bosniak, he would suffer discrimination and harassment if
18 returned to Kosovo. He also submitted several news articles
19 discussing increasing ethnic tensions between Albanians and
20 Serbs in Kosovo. However, as Bektesevic acknowledges in his
21 brief, he is neither Albanian nor Serbian, and none of the
22 evidence he submitted discussed how conditions for Bosniaks
23 had deteriorated or changed since Kosovo’s declaration of
24 independence. Accordingly, the BIA did not abuse its
25 discretion in denying his untimely motion to reopen. See
3
1 8 C.F.R. § 1003.2(c)(3)(ii) (noting that new evidence
2 submitted with a motion to reopen must be material); Jian
3 Hui Shao, 546 F.3d at 169.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
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