Drande Vilija v. Atty Gen USA , 422 F. App'x 176 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2717
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DRANDE VILIJA, a/k/a Pregjins Fati, a/k/a Regjina
Fati, a/k/a Drande Vidhja; EDUARD VILIJA, a/k/a
Edward Vidhja; ADRIAN VILIJA, a/k/a Adrian Vidhja,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency Nos. A077-027-881, 882, & 883)
Immigration Judge: Henry S. Dogin
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 6, 2011
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
(Opinion filed: April 8, 2011)
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OPINION
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PER CURIAM.
Drande Vilija (“Vilija”) petitions for review of the Board of Immigration
Appeals‟ final order of removal. For the reasons that follow, we will deny the petition for
review.
Vilija, a native and citizen of Albania, arrived in the United States with her
two sons (who are now adults) on May 6, 1998. She thereafter was served with a Notice
to Appear, which charged that she is removable under Immigration & Nationality Act
(“INA”) § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien not in possession
of a valid entry document, and § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), as an alien
who has committed fraud to obtain an immigration benefit. Vilija applied for asylum,
withholding of removal, and protection under the Convention Against Torture, claiming
political persecution.1
At her hearing on January 29, 1999, Vilija testified that she and her
children were at risk because, on February 28, 1998, seven individuals from the Socialist
Party entered her home and requested “a big sum of money.” A.R. 196. Her father-in-
law told them that he did not have the money, and, in response, those individuals beat
Vilija and her father-in-law, and then kidnapped her younger son, Adrian, and held him
for several hours at “the office of the communists.” Id. at 201. After Adrian‟s release,
Vilija received letters under her door from time to time, demanding money and
threatening to take both her sons if she did not pay. See id. at 203. Apart from the 1998
incident, Vilija claimed that, prior to 1985, her father was interned in a labor camp for
five years because of his political opposition to communism, and, consequently, she was
unable to attend school beyond the eighth grade. See id. at 222. Between 1993 and
1997, her husband suffered persecution at the hands of the police, and, during one such
1
Vilija‟s sons are derivative beneficiaries of her application. Her husband, Prele Vilija,
filed his own application and was in proceedings separate from his family.
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encounter in July, 1996, a policeman pushed her down, causing her wrist to break. See
id. at 213-14. Vilija‟s son Adrian testified about the kidnapping, see id. at 250, and
Vilija‟s husband testified about his activities on behalf of the Democratic Party, and that
he was beaten by members of the Democratic Party after he tried to leave the party, see
id. at, 259, 262-63.
Following the hearing, the Immigration Judge denied relief. The IJ
concluded that, although Vilija and her family of origin may have suffered under the old
Communist regime, the kidnapping of her son for a few hours was not politically
motivated. It was carried out by criminal elements bent on extortion. The IJ found
Vilija‟s other testimony not credible based on inconsistencies. The IJ did not believe that
Vilija and her husband had been persecuted on the basis of his membership in the
Democratic Party, or his resignation from that party; the IJ believed that Vilija left
Albania because of the high level of random violence in that country. The fraud charge
was dismissed, but Vilija and her sons were found removable under INA §
212(a)(7)(A)(i)(I). The IJ ordered them removed to Albania. On September 18, 2002,
the Board of Immigration Appeals affirmed without opinion, 8 C.F.R. § 3.1(a)(7). Vilija
did not petition for review of this decision.
Over seven years later, on November 10, 2009, Vilija filed a motion to
reopen removal proceedings, seeking an exception from the timeliness requirement based
on changed conditions in Albania. Vilija claimed that her family was in jeopardy due to
the ongoing political strife in Albania. In support, she submitted an affidavit from Prenk
Camaj, a former Catholic priest who claimed to be an expert on country conditions in
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Albania. Camaj stated in his affidavit that crime and corruption were out of control in
Albania when the Socialist Party was in power from 1997 to 2005. A.R. 75. In addition,
conditions in Albania had deteriorated since the elections in 2009. A.R. 58-59. Vilija
also submitted an article from the New York Times about Albania‟s “blood feuds,” and
two internet articles concerning the Socialist Party‟s challenge to the results of the 2009
elections. See id. at 91-93. On May 13, 2010, the Board denied the motion to reopen as
untimely filed. The Board found that the motion did not qualify for the exception based
on changed country conditions. The Board acknowledged the ongoing conflict between
the Socialist Party and the Democratic Party, but, as for Vilija‟s argument that she has a
well-founded fear of future persecution, the Board determined that it lacked merit,
explaining:
To the extent [she] may be claiming a fear of
persecution because of the husband‟s purported
membership in the Democratic Party, we point out both
that this claim was found not credible below and that
the evidence submitted with the motion reflects that the
Democratic Party has dominated in both the 2005 and
2009 elections in Albania. The respondents have not
shown that there has been a change in Albania since the
time of their hearing that is material to an asylum claim.
A.R. 4.
Vilija has timely petitioned for review. We have jurisdiction under 8
U.S.C. §1252(a)(1), (b)(1). Vilija contends in her brief on appeal that the Board abused
its discretion in denying the motion to reopen as untimely filed because her new and
material evidence shows that conditions in Albania have deteriorated since, January,
1999. She contends that the Board did not adequately consider Camaj‟s report,
4
Petitioner‟s Brief, at 13-14, which contends that the Democratic government is in danger
of being overthrown, see id. at 15, and that, regardless of which party is in power, the
Vilija family is in danger because they have suffered under both political parties, see id.
at 17.
We will deny the petition for review. We review the Board‟s denial of a
motion to reopen for abuse of discretion. Immigration & Naturalization Serv. v. Doherty,
502 U.S. 314, 323 (1992). Under this deferential standard of review, we will not disturb
the Board‟s decision unless it is arbitrary, irrational, or contrary to the law. See Guo v.
Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). Motions to reopen removal proceedings are
“disfavored” because, “„as a general matter, every delay works to the advantage of the
deportable alien who wishes merely to remain in the United States.‟” Lu v. Ashcroft, 259
F.3d 127, 131 (3d Cir. 2001) (quoting Doherty, 502 U.S. at 323).
“A motion to reopen proceedings shall state the new facts that will be
proven at a hearing to be held if the motion is granted and shall be supported by affidavits
or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). “A motion to reopen
proceedings shall not be granted unless it appears to the Board that evidence sought to be
offered is material and was not available and could not have been discovered or presented
at the former hearing.” Id. The “motion must be filed no later than 90 days after the date
on which the final administrative decision was rendered in the proceeding sought to be
reopened,” id. at 1003.2(c)(2), except that the time limitation does not apply where the
alien seeks to “apply or reapply for asylum or withholding of deportation based on
changed circumstances arising in the country of nationality or in the country to which
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deportation has been ordered, if such evidence is material and was not available and
could not have been discovered or presented at the previous hearing,” id. at
1003.2(c)(3)(ii). See also 8 U.S.C. § 1229a(c)(7)(C)(ii).
Vilija‟s motion to reopen was not filed within 90 days of the Board‟s
September, 2002 decision and thus was untimely filed. Moreover, we conclude that the
Board‟s determination that she failed to demonstrate changed country conditions
sufficient to excuse her untimely motion to reopen was not arbitrary, irrational, or
contrary to law. Guo, 386 F.3d at 562. Vilija contends through her expert, Camaj, that
Albania was chaotic from 1997 until 2005, when the Democratic Party finally won
control of the government. Camaj stated that, from 1997 to 2005, “many lives were lost.”
A.R. 64. Since 2005, conditions have been “chaotic.” See id. at 65. Albania was run by
the Socialist Party until late 2005. See id. The Democratic Party came to power in 2006
but it has been guilty of “infighting.” See id. at 66. Albania again was thrown into
turmoil during and after the June, 2009 parliamentary elections. See id. at 58-59.
Impliedly acknowledging that the United States Department of State‟s recent country
reports would not support Vilija‟s claim for asylum, Camaj expressed the view that the
State Department underreports incidents of political violence in Albania because it is in
the United States‟ security interests to do so. See id. at 73-74. Camaj questions the
credibility of the Country Reports. See id.
The Board did not find the Camaj report to be persuasive evidence that
country conditions in Albania have worsened since January, 1999, and we conclude that
this was not an abuse of the Board‟s discretion. In general, Camaj‟s report indicates that
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there is an ongoing conflict between the two rival parties, which may not have improved
over the last ten years but certainly has not worsened. As to the particular events
concerning the June, 2009 parliamentary elections, Camaj‟s report states that Albania is
again chaotic, see id. at 80, but the Democratic Party won that election. Moreover, the
internet articles Vilija submitted in support of her motion to reopen state only that the
opposition Socialist Party has boycotted Parliament since September, 2009, and not that
politically motivated violence is on the rise in Albania. See id. at 91, 93. Moreover,
some of the criticism Camaj leveled at the State Department concerned its underreporting
of the trafficking of women, see id. at 74-75, but Vilija‟s allegations of persecution do not
concern human trafficking. Accordingly, to the extent the Board gave little weight to
Camaj‟s opinion, we cannot say that doing so was arbitrary, irrational, or contrary to the
law. See Guo, 386 F.3d at 562.
Vilija contends that the Board erred in not explicitly considering all of her
country conditions evidence, see Zheng v. Att‟y Gen. of U.S., 549 F.3d 260, 268 (3d Cir.
2008), but the Board explicitly referenced Camaj‟s report, her principal evidence, in its
decision. The New York Times article about blood feuds2 is not material to Vilija‟s
claim of political persecution because the article does not state or even suggest that blood
feuds are perpetrated on the basis of political affiliation. See id. at 268 (Board must
explicitly consider any country conditions evidence that materially bears on an
2
The article states that, “[u]nder the Kanun, an Albanian code of behavior that has been
passed on for more than 500 years, „blood must be paid with blood,‟ with a victim‟s
family authorized to avenge a slaying by killing any of the killer‟s male relatives.” A.R.
88.
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applicant‟s claim). See also 8 C.F.R. § 1003.2(c)(3)(ii) (evidence in support of motion to
reopen based on changed country conditions must be both material and previously
unavailable). The article states only that blood feuds became a problem after the fall of
Communism ushered in a new period of lawlessness. A.R. 89. The two internet articles
noting the Socialist Party boycott of the 2009 elections provide no support for Vilija‟s
assertion that conditions in Albania have worsened since 1999.
We note that Vilija argued in her motion to reopen that “[r]eligious
persecution is another aspect of this family‟s claim that was not properly examined
earlier,” A.R. 27; see also Petitioner‟s Brief, at 17-18, but Vilija did not raise a claim of
religious persecution in the original proceedings, and there is no evidence that Vilija fears
persecution on this ground. Her argument concerning the Convention Against Torture,
see Petitioner‟s Brief, at 18, fails for similar reasons; Vilija did not raise a claim for
protection under the CAT before the IJ or before the Board, either on direct appeal or in
her motion to reopen. We generally are unable to review claims where administrative
remedies have not been exhausted. See Alleyne v. Immigration & Naturalization Serv.,
879 F.2d 1177, 1182 (3d Cir. 1989). See also Duvall v. Elwood, 336 F.3d 228, 234 (3d
Cir. 2003). Last, we note that Vilija‟s claim for asylum is the same as it was in her
original application, and yet she made no effort to rebut the Board‟s original adverse
credibility determination. Cf. Guo, 386 F.3d at 562 (prior adverse credibility finding for
religious persecution claim was not relevant to subsequent motion to reopen asserting
claim based on China‟s coercive population control policies).
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In sum, Vilija has not shown that conditions in Albania are materially
worse than they were in 1999, and thus she has failed to demonstrate that the Board‟s
decision to deny her motion to reopen as untimely was an abuse of discretion.
For the foregoing reasons, we will deny the petition for review.
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