Drejaj v. Holder ( 2011 )

10-3088-ag
Drejaj v. Holder
BIA
A098 212 429
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 20th day of May, two thousand eleven.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 ARBEN DREJAJ,
14 Petitioner,
15
16 v. 10-3088-ag
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Thomas V. Massucci, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Jennifer Paisner Williams,
29 Senior Litigation Counsel; Tiffany
30 L. Walters, Trial Attorney, Office
31 of Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Arben Drejaj, a native and citizen of Albania, seeks
6 review of a July 16, 2010, order of the BIA denying his
7 motion to reopen his removal proceedings. In re Arben
8 Drejaj, No. A098 221 429 (B.I.A. July 16, 2010). We assume
9 the parties’ familiarity with the underlying facts and
10 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,
13 517 (2d Cir. 2006) (per curiam). An alien who has been
14 ordered removed may file one motion to reopen, but must do
15 so within 90 days of the final administrative decision. 8
16 U.S.C. § 1229a(c)(7). Here, the BIA did not abuse its
17 discretion by denying Drejaj’s motion to reopen as untimely,
18 as his motion was filed in January 2010, more than one year
19 after the entry of his June 2008 final order of removal. See
20 id.; 8 C.F.R. § 1003.2(c)(2).1
1
We denied Drejaj’s petition for review of the
BIA’s June 2008 decision. Drejaj v. Holder, 336 Fed.
Appx. 102 (2d Cir. 2009).
2
1 Although the time limitation may be excepted upon a
2 showing of changed country conditions, the BIA’s
3 determination that Drejaj failed to make such a showing is
4 supported by substantial evidence. 8 U.S.C. § 1229a(c)(7).
5 As an initial matter, the BIA properly examined whether
6 country conditions had changed between the time of Drejaj’s
7 merits hearing and the submission of his motion to reopen.
8 See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007)
9 (holding that “[i]n determining whether evidence
10 accompanying a motion to reopen demonstrates a material
11 change in country conditions that would justify reopening,
12 we compare the evidence of country conditions submitted with
13 the motion to those that existed at the time of the merits
14 hearing below”). Further, the BIA’s initial decision is not
15 inconsistent with its denial of reopening. The BIA reversed
16 the IJ’s grant of asylum because conditions in Albania had
17 improved since Drejaj arrived in the United States in 2004,
18 whereas the BIA in its July 2010 decision found that the
19 conditions in Albania had not materially worsened since the
20 2006 merits hearing.
21
22
3
1 Moreover, the BIA reasonably concluded that Drejaj
2 failed to establish changed conditions in Albania. The
3 evidence Drejaj submitted in support of his motion indicated
4 continuing sectarian conflict in Albania. However, Drejaj
5 failed to point to evidence in the record establishing a
6 material change, as the background documentation submitted
7 in support of his original application provided similar
8 information regarding sectarian violence in Albania. See
9 Matter of S-Y-G-, 24 I. & N. Dec. at 253. Therefore,
10 substantial evidence supports the BIA’s determination that
11 Drejaj failed to establish changed country conditions. See
12 8 U.S.C. § 1229a(c)(7), 8 C.F.R. §§ 1003.2(c)(2),
13 (c)(3)(ii); see also Jian Hui Shao v. Mukasey, 546 F.3d 138,
14 169 (2d Cir. 2008) (holding that when the BIA considers
15 relevant evidence of country conditions in evaluating a
16 motion to reopen, this Court reviews the BIA’s factual
17 findings under the substantial evidence standard).
18 Further, the BIA did not abuse its discretion in
19 appraising the evidence Drejaj submitted. As Drejaj fails
20 to offer any reasons explaining why the BIA erred, we defer
21 to the agency’s evaluation of the documentary evidence.
22 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
23 342 (2d Cir. 2006) (finding that the weight afforded to the
4
1 applicant’s evidence in immigration proceedings lies largely
2 within the discretion of the agency). Also contrary to
3 Drejaj’s position, a reasonable fact-finder would not be
4 compelled to conclude that the BIA ignored any material
5 evidence. See Jian Hui Shao, 546 F.3d at 169 (this Court
6 has rejected the notion that the BIA must “expressly parse
7 or refute on the record each individual argument or piece of
8 evidence offered by the petitioner”). Rather, the BIA
9 considered the evidence in some detail, explicitly citing to
10 the record and finding that the evidence was similar to that
11 submitted in his earlier proceedings.
12 Because the BIA reasonably concluded that Drejaj failed
13 to demonstrate a change in country conditions, the BIA did
14 not abuse its discretion in denying Drejaj’s motion to
15 reopen as untimely. 8 C.F.R. §§ 10003.2(c)(2), (c)(3)(ii).
16 Accordingly, we do not reach Drejaj’s argument that he is
17 prima facie eligible for relief. See 8 U.S.C.
18 § 1229a(c)(7)(C)(ii).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
23 this petition is DENIED as moot. Any pending request for
5
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
6