Tafani v. Holder ( 2010 )

09-3039-ag
Tafani v. Holder
BIA
A097 485 862
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 9 th day of July, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 GUIDO CALABRESI,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 TETOR TAFANI,
14 Petitioner,
15
16 v. 09-3039-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: H. Raymond Fasano, New York, New
24 York
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; James A. Hunolt, Senior
28 Litigation Counsel; Christopher P.
29 McGreal, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 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 Tetor Tafani, a native and citizen of Albania, seeks
6 review of a June 17, 2009, order of the BIA denying his
7 motion to reopen. In re Tetor Tafani, No. A097 485 862
8 (B.I.A. June 17, 2009). We assume the parties’ familiarity
9 with the underlying facts and procedural history of this
10 case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion, mindful of the Supreme Court’s
13 admonition that such motions are “disfavored.” Ali v.
14 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
15 Doherty, 502 U.S. 314, 322-23 (1992)). We review for
16 substantial evidence the BIA’s evaluation of country
17 conditions evidence submitted with a motion to reopen. Jian
18 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
19 A party may file only one motion to reopen removal
20 proceedings, and must do so no later than 90 days after the
21 date on which the final administrative decision was rendered
22 in the proceeding sought to be reopened. 8 C.F.R.
23 § 1003.2(c)(1),(2). It is beyond dispute that Tafani’s
24 motion to reopen was untimely. However, the time and number
2
1 limitations do not apply to a motion to reopen that is
2 “based on changed circumstances arising in the country of
3 nationality or in the country to which deportation has been
4 ordered, if such evidence is material and was not available
5 and could not have been discovered or presented at the
6 previous hearing.”
7 8 C.F.R. § 1003.2(c)(3)(ii).
8 Tafani argues that the BIA failed to consider an
9 affidavit from Prenk Camaj, in which Camaj asserted that
10 conditions in Albania had worsened. This argument is
11 unavailing. While the BIA has an obligation to consider the
12 “record as a whole,” and may abuse its discretion by denying
13 a motion to reopen without addressing “all the factors
14 relevant to [a] petitioner’s claim,” Ke Zhen Zhao v. U.S.
15 Dep’t of Justice, 265 F.3d 83, 97 (2d Cir. 2001), it is not
16 required to “expressly parse and refute...each
17 individual...piece of evidence offered by the petitioner.”
18 Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006). Although
19 Tafani argues that Camaj’s affidavit indicates that
20 conditions are worse than those reflected in the State
21 Department Country Report, the BIA did not abuse its
22 discretion by determining that any changes were insufficient
23 to warrant reopening and were, in fact, “slightly improved.”
3
1 See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007)
2 (“where there are two permissible views of the evidence, the
3 fact finder’s choice between them cannot be clearly
4 erroneous”).
5 We have previously taken judicial notice of the fact
6 that country conditions in Albania have improved rather than
7 worsened for Democratic Party supporters since Albania’s
8 2005 elections. See, e.g., Hoxhallari v. Gonzales, 468 F.3d
9 179, 187 (2d Cir. 2006). On this record, we cannot conclude
10 that the BIA erred in evaluating Tafani’s evidence. See Ke
11 Zhen Zhao, 265 F.3d at 93; Jian Hui Shao, 546 F.3d at 169.
12 Thus, we will not disturb its denial of Tafani’s untimely
13 motion to reopen.
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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