Agim Rexhaj v. Atty Gen USA , 466 F. App'x 144 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3290
___________
AGIM REXHAJ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-527-698)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 14, 2012
Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges
(Opinion filed: March 14, 2012)
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OPINION
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PER CURIAM
Agim Rexhaj petitions for review of the Board of Immigration Appeals’s
(“BIA”) order denying his motion to reopen his immigration proceedings. For the
reasons that follow, we will deny the petition for review.
I
Rexhaj is a native of Yugoslavia and a citizen of Kosovo. He was placed in
removal proceedings in 2007 for entering the United States without inspection. At
the December 2008 hearing before the Immigration Judge (“IJ”), Rexhaj conceded
removability, but sought asylum, withholding of removal, and protection under the
Convention Against Torture. In support of his application, Rexhaj contended that
he and his family faced hardships prior to and during the 1998 war in Kosovo; that
he was threatened by Albanians from 2004 to 2006 because the company he
worked for built homes for ethnic minorities in Kosovo and because he was a
member of the Democratic League of Kosovo (“DLK”) political party; and that on
one occasion in 2007, he was beaten by a group of men because of his association
with the DLK. He also claimed that six of his relatives were murdered for their
association with the DLK.
The IJ denied relief, finding Rexhaj incredible because of unexplained
inconsistencies in his claim: although his asylum application stated generally that
he was attacked by a group of masked persons, he embellished his claim during
cross-examination and on re-direct, explaining that the attackers specifically
mentioned that they opposed Rexhaj’s affiliation with the DLK and considered him
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a traitor, and that they wore the insignia of the Albanian National Army (“ANA”),
a paramilitary group. In the alternative, the IJ concluded that even if Rexhaj was
credible, he had not met his burden of proof. The BIA dismissed Rexhaj’s appeal,
agreeing with the IJ on all grounds. Rexhaj filed a petition for review, which this
Court dismissed as untimely. See Rexhaj v. Att’y Gen., C.A. No. 10-4469 (order
entered Jan. 11, 2011).
Later that month, Rexhaj filed a motion to reopen the immigration
proceedings with the BIA. In that motion, Rexhaj presented purportedly new
evidence relating to conditions in Kosovo: (1) an updated asylum application and
statement; (2) letters from his wife and father alleging that they had recently been
threatened and assaulted by ANA members, who continue to ask about Rexhaj’s
whereabouts; (3) three articles related to his cousins’ murders; and (4) four articles
about the ANA and its activities in Kosovo. The BIA denied the motion to reopen,
reasoning that Rexhaj’s evidence was either previously available or failed to
demonstrate his eligibility for relief. Rexhaj now petitions for review of that order.
II
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA’s
denial of the motion to reopen for abuse of discretion. See Fadiga v. Att’y Gen.,
488 F.3d 142, 153 (3d Cir. 2007). Under that standard, the BIA’s decision will not
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be disturbed unless it was “arbitrary, irrational, or contrary to law.” Sevoian v.
Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002) (quotation marks and citation omitted).
“A motion to reopen proceedings shall not be granted unless it appears to the
Board [of Immigration Appeals] that evidence sought to be offered is material and
was not available and could not have been discovered or presented at the former
hearing . . . .” 8 C.F.R. § 1003.2(c)(1). Further, a motion to reopen must
demonstrate prima facie eligibility for asylum. See Guo v. Ashcroft, 386 F.3d 556,
563 (3d Cir. 2004). The prima facie case standard requires the applicant to
demonstrate a reasonable likelihood that he can establish eligibility for relief. See
id. (quoting Sevoian, 290 F.3d at 175). In denying the motion to reopen, the BIA
reasoned that Rexhaj’s evidence failed to satisfy these requirements.
The BIA first noted that Rexhaj’s updated asylum statement and the letters
from his wife and father, though previously unavailable, did not bear on his
eligibility for relief. That is, because none of those documents addressed the
inconsistencies in Rexhaj’s original asylum claim, the evidence did not call into
question the adverse credibility determination that barred Rexhaj from obtaining
relief. The BIA further reasoned that the letters neither explained why ANA
members continue to look for Rexhaj in Kosovo nor demonstrated changed country
conditions there, given that Rexhaj and his family had already allegedly been
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threatened and harassed. Our review of the administrative record does not lead to
the conclusion that the BIA’s determination was arbitrary, irrational, or contrary to
the law in that regard.
Turning to the articles Rexhaj submitted describing his cousins’ murders, the
BIA noted that the articles were either previously available or did not bear on
Rexhaj’s eligibility for relief. We agree. Of the three articles, two were published
in 2006 -- two years before Rexhaj’s removal hearing. And the third article, which
was undated, did not present information that the IJ was unaware of. Indeed, in the
original proceedings, the IJ specifically acknowledged that Rexhaj’s cousins had
been killed, but ultimately concluded that Rexhaj’s evidence was insufficient to
meet his burden of proof.
Finally, the BIA reasoned that Rexhaj’s four background articles on the
ANA were insufficient to warrant reopening. Again, we agree. Three of the
articles were written before Rexhaj’s removal hearing, and thus were previously
available. The final article, a Wikipedia entry on the ANA, refers to only one
incident that occurred after Rexhaj’s removal hearing. It describes an April 2010
terrorist attack by the ANA on a Macedonian policeman -- a fact that the BIA
plausibly reasoned did not bear on Rexhaj’s claim that the ANA continues to
persecute DLK members.
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Relatedly, Rexhaj asks this Court to take judicial notice of two articles from
October 2011 describing unsafe conditions in Kosovo. However, our review is
limited to the evidence in the administrative record. See Yu v. Att’y Gen., 513
F.3d 346, 349 n.2 (3d Cir. 2008) (citing 8 U.S.C. § 1252(b)(4)(A)).
In sum, we perceive no abuse of discretion in the BIA’s denial of Rexhaj’s
motion to reopen. Accordingly, we will deny the petition for review.
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