Duka v. Barr ( 2019 )

18-1621
Duka v. Barr
BIA
A095 149 726
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
13th day of December, two thousand nineteen.
PRESENT:
DENNIS JACOBS,
SUSAN L. CARNEY,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________
SHKELQIM DUKA,
Petitioner,
v. 18-1621
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: PAUL B. GROTAS, The Grotas Firm, P.C.,
New York, NY.
FOR RESPONDENT: LYNDA A. DO, Attorney (Joseph H. Hunt,
Assistant Attorney General; Stephen
J. Flynn, Assistant Director, on the
brief) for the Office of Immigration
Litigation, United States Department
of Justice, Washington, DC.
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.
Petitioner Shkelqim Duka, a native and citizen of Macedonia,
seeks review of a decision of the BIA denying his fifth motion to
reopen. In re Shkelqim Duka, No. A095 149 726 (B.I.A. May 2,
2018). We review the BIA’s denial of a motion to reopen for abuse
of discretion and the BIA’s conclusion regarding country
conditions for substantial evidence. Jian Hui Shao v. Mukasey,
546 F.3d 138, 168–69 (2d Cir. 2008). The BIA abuses its discretion
if its “decision provides no rational explanation, inexplicably
departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements; that is to say,
where the Board has acted in an arbitrary or capricious manner.”
Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir. 2005) (internal
quotation marks omitted).
It is undisputed that Duka’s motion was untimely and number
barred because it was his fifth motion and his removal order became
final in 2005. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i). To avoid
the applicable time and number limitations, he had to show a
material change in country conditions in Macedonia relevant to his
stated fear of persecution arising from his father-in-law’s
conviction. See 8 U.S.C. § 1229a(c)(7)(C)(ii). He also had to
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show his prima facie eligibility for asylum. See INS v. Abudu,
485 U.S. 94, 104–05 (1988) (even assuming a material change in
country conditions, the agency may deny reopening where a movant
fails to demonstrate prima facie eligibility for relief); see also
Jian Hui Shao, 546 F.3d at 168 (to demonstrate prima facie
eligibility for relief, a movant “must show a ‘realistic chance’
that she will be able to obtain such relief”). We conclude that
the BIA did not abuse its discretion in denying the petition
because Duka failed to show either a material change in country
conditions or his prima facie eligibility for relief. His claim
that he would be targeted because of his father-in-law’s conviction
or accusations was speculative: he adduced no evidence that his
father-in-law was framed or that anyone close to his father-in-
law had been targeted.
Duka contends that the BIA erred by failing to discuss an
updated expert report by Dr. Bernd Fischer on conditions in
Macedonia. We identify no abuse of discretion in the agency’s
decision not to discuss the updated report. The agency is not
required to parse explicitly each piece of evidence. See Wei
Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006). Further, the
BIA was not obligated to credit the report, which was based, in
part, on Duka’s discredited allegations of past harm and did not
substantively address his father-in-law’s conviction,
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notwithstanding that the conviction was the predicate for the fear
alleged by Duka in his fifth motion to reopen. See id. at 275–76
(explaining that the agency does not have to “parse or refute on
the record each individual argument or piece of evidence,”
particularly where that evidence is “oft-cited” or “immaterial”
(internal quotation marks omitted)).
As to both Dr. Fischer’s report and the additional country
conditions evidence that Duka submitted with his fifth motion to
reopen, the BIA did not abuse its discretion by failing to analyze
specific pieces of evidence presented by Duka. The evidence of
new incidents of violence against ethnic Albanians reflected
neither a heightening of volatile conditions for ethnic Albanians
nor an interest in Duka by criminals or Macedonian authorities.
See Jian Hui Shao, 546 F.3d at 169; Wei Guang Wang, 437 F.3d at
275–76. In sum, the BIA did not err in denying Duka’s motion to
reopen because it did not ignore material evidence presented by
Duka, and Duka failed to establish either changed country
conditions or his prima facie eligibility for asylum by virtue of
his father-in-law’s actions. Insofar as the BIA declined to
exercise its authority to reopen sua sponte, we lack jurisdiction
to review that “entirely discretionary” determination. See Ali
v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
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For the foregoing reasons, the petition for review is DENIED,
the stay of removal previously granted is VACATED, and the
Government’s motion for summary denial and Duka’s motion to remand
are DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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