Murici v. Holder ( 2012 )

11-3524-ag
Murici v. Holder
BIA
A079 128 555
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 13th day of September, two thousand twelve.
PRESENT:
ROBERT D. SACK,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
LULJETA MURICI, AKA HAJRIJA KUKIC,
Petitioner,
v. 11-3524-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Gregory Marotta, Vernon, New Jersey.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Thomas B. Fatouros, Senior
Litigation Counsel; Robert Michael
Stalzer, 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.
Petitioner Luljeta Murici, a native of Kosovo and a
citizen by birth of the former Yugoslavia, seeks review of
an August 8, 2011 decision of the BIA denying her motion to
reopen her removal proceedings. In re Luljeta Murici, No.
A079 128 555 (B.I.A. Aug. 8, 2011). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). An alien seeking to reopen proceedings is
required to file a 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). Because the BIA issued a final order of
removal in March 2004, there is no dispute that Murici’s
motion to reopen, filed in February 2011, was untimely. See
id.
Murici contends, however, that she established changed
circumstances in Kosovo on the basis of statements from her
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father and brother describing a December 2010 home invasion
by members of the Democratic Party of Kosovo. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii) (providing an exception to the 90-day
deadline where a motion is based on a material change in
circumstances in the country of removal). We conclude that
the BIA’s denial of Murici’s motion to reopen as untimely
was not an abuse of discretion.
Notwithstanding Murici’s argument to the contrary, the
BIA did not fail to consider her brother’s and father’s
statements. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency
“has taken into account all of the evidence before [it],
unless the record compellingly suggests otherwise”).
Indeed, the BIA explicitly discussed the statements in its
decision and reasonably found them to be unreliable because
they were from interested witnesses, were photocopies
proffered without mailing envelopes, and lacked
corroboration. See, e.g., Xiao Ji Chen, 471 F.3d at 342
(holding that the weight afforded to the applicant’s
evidence in immigration proceedings lies largely within the
discretion of the agency); Qin Wen Zheng v. Gonzales, 500
F.3d 143, 149 (2d Cir. 2007) (finding that the Board did not
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abuse its discretion in declining to credit a document
supported only by a spouse’s affidavit where the Immigration
Judge had previously questioned the applicant’s
credibility).
Because Murici’s brother’s and father’s statements were
the only evidence of country conditions proffered in support
of reopening, the BIA did not abuse its discretion in
finding that she failed to demonstrate a material change in
circumstances in Kosovo. See Jian Hui Shao v. Mukasey, 546
F.3d 138, 169 (2d Cir. 2008).
Because the BIA did not abuse its discretion in denying
Murici’s untimely motion, we decline to address her prima
facie eligibility for asylum, as the BIA did not reach that
issue. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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