Vasilia v. Mukasey

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1434
KLOTILDA VASILIA, A/K/A MIRANDA PROSI,
TODI VASILIA,
Petitioners,
v.
MICHAEL B. MUKASEY, United States Attorney General,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Selya, Senior Circuit Judge, and
Siler,** Senior Circuit Judge.
Sokol Braha for petitioners.
Peter D. Keisler, Assistant Attorney General, Mark C. Walters,
Assistant Director, and Joanne E. Johnson, Civil Division,
Department of Justice, for respondent.
February 6, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzales as the responded herein.
**
*Of the Sixth Circuit, sitting by designation.
SILER, Senior Circuit Judge. Petitioners Klotilda Vasilia
(“Vasilia”) and her minor son, Todi Vasilia, challenge the denial
by the Board of Immigration Appeals (“BIA”) of a motion to reopen
their immigration proceedings. Their untimely motion to reopen
asserted both ineffective assistance of counsel and changed country
conditions. The BIA denied the motion. Vasilia then filed this
petition for review. We deny the petition.
I.
Klotilda and Todi Vasilia are citizens of Albania. They
attempted to enter the United States in 2001 without valid travel
documents. The Department of Homeland Security charged them with
being removable. When they appeared before the immigration judge
(“IJ”), the petitioners conceded removability and sought asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”).
In her asylum application, Vasilia stated that she and her
family suffered past persecution based on their involvement in pro-
democracy activities. Most of her family resettled in Greece in
1991, where they continue to reside as permanent residents.
Vasilia chose to remain in Albania with her husband and his family.
She claimed that in 1997, her husband was kidnapped and mistreated
for approximately three days because of his pro-democracy
activities. About two days after his release, a gunshot was fired
through a window of the family’s apartment, and her husband’s
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parents, who shared the apartment, received a threatening letter.
Following these events, the family went to Greece. From August
1997 until Vasilia’s attempt to enter the United States in 2001,
she and her family moved between Greece and Albania at various
times.
The IJ denied the petitioners’ applications for asylum,
withholding of removal, and CAT relief. The IJ found that Vasilia
failed to establish past persecution or a well-founded fear of
future persecution. The IJ also emphasized the fact that neither
Vasilia nor her husband attempted to obtain resident status in
Greece, although they could have done so.
Vasilia appealed the IJ’s decision to the BIA. On April 9,
2003, the BIA denied her appeal. The BIA also held that the
petitioners were not entitled to a derivative claim of relief from
Vasilia’s husband because the BIA had separately dismissed his
claims for asylum, withholding of removal, and CAT relief. The
petitioners did not seek this court’s review of the BIA’s decision.
Instead, on December 26, 2006, the petitioners filed a motion
with the BIA to reopen their immigration proceedings. The
petitioners moved the BIA to reopen their proceedings based on
ineffective assistance of counsel and changed country conditions.1
Vasilia asserts that her attorney did not adequately present her
1
The petitioners also raised Todi Vasilia’s health problems as
a humanitarian concern. However, the BIA correctly found that
Todi’s condition is not relevant to the asylum claim.
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case to the IJ. Specifically, Vasilia’s affidavit recounts an
incident from 2001 in which she was kidnapped and raped on account
of being a democratic activist. Vasilia claims that her attorney
“unilaterally” decided not to present this information before the
IJ. At the IJ hearing, Vasilia did not testify about any harm
coming to her or her husband after his kidnapping in 1997.
In 2007, the BIA declined to exercise its sua sponte authority
to reopen the proceedings based on the ineffective assistance claim
and also denied the motion to reopen based on changed country
conditions, finding that the petitioners failed to establish a
reasonable likelihood of success on the merits. This petition for
judicial review followed.
II.
The petitioners’ motion to reopen based on ineffective
assistance of counsel was untimely because it was filed more than
three years after the BIA rendered its decision. See 8 C.F.R.
§ 1003.2(c)(2) (allowing 90 days to file motion to reopen).
Although equitable tolling of the 90-day deadline is possible, it
“is unavailable where a party fails to exercise due diligence.”
Jobe v. INS, 283 F.3d 96, 100 (1st Cir. 2001) (en banc). The BIA
found that Vasilia failed to show due diligence where the motion to
reopen was filed three years after the BIA’s order of dismissal.
We do not have jurisdiction to review the BIA’s decision that
equitable tolling is unavailable where that decision was based “on
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a factual determination that [the petitioner] had not exercised due
diligence.” Boakai v. Gonzales, 447 F.3d 1, 4 (1st Cir. 2006).
Thus, the motion to reopen could be granted only if the BIA
exercised its sua sponte authority to reopen the proceedings. 8
C.F.R. § 1003.2(a) (“The Board may at any time reopen or reconsider
on its own motion any case in which it has rendered a decision.”).
The BIA noted that it will take such action only in “exceptional
circumstances,” and it declined to do so here. Because the
decision to sua sponte reopen a case is committed to the
“unfettered discretion” of the BIA, it is not subject to review by
this court. Zhang v. Gonzales, 469 F.3d 51, 53 (1st Cir. 2006).
The 90-day time limitation for motions to reopen does not
apply where the motion is based on changed country conditions, if
the evidence of changed conditions “is material and was not
available and could not have been discovered or presented at the
previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). We review the
BIA’s denial of the motion based on changed country conditions for
an abuse of discretion. Raza v. Gonzales, 484 F.3d 125, 127 (1st
Cir. 2007). The evidence submitted in support of the motion to
reopen “must, at a bare minimum, establish a prima facie case
sufficient to ground a claim of eligibility for the underlying
substantive relief.” Id. at 128. Thus, in this case, Vasilia must
establish prima facie eligibility for asylum or withholding of
removal.
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Vasilia argues that the BIA abused its discretion because it
denied her motion without considering or discussing the
“substantial documentation submitted in support of the motion.”
However, much of the documentation submitted by Vasilia does not
meet the criteria set forth in the regulation because it was
available or could have been discovered at the original hearing.
This is true of the information in Vasilia’s affidavit regarding
the attack and rape that allegedly took place in 2001, the
documents relating to her family’s political participation, and the
statements regarding treatment of her husband after he was
kidnapped. Additionally, some of the submitted documents appear to
be totally irrelevant, particularly those about the sentencing of
her husband’s uncle in 1948 by a military court.
The proffered documentation regarding conditions in Albania
includes the 2005 State Department Report on Human Rights Practices
in Albania and several newspaper articles. The newspaper articles
are largely irrelevant to Vasilia’s case because they involve
hostility between members of the Albanian parliament, a reported
missile attack on a prominent pro-democracy family, and poor
conditions in Albanian prisons. None of these news stories is
sufficient to show that Vasilia has a well-founded fear of
persecution if she returns to Albania. Further, the BIA
considered the State Department Report for 2005 and mentioned its
findings that “human rights were generally respected, and citizens
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exercised their rights to change government peacefully.”2 The only
other piece of relevant new evidence was a letter from Vasilia’s
father-in-law discussing recently-made threats to Vasilia’s husband
and son. This letter, written on November 20, 2006, presents
obvious credibility concerns; however, the BIA failed to mention
the letter at all.
Rather than addressing the petitioners’ documentation, the
BIA’s decision relies upon the 2005 State Department Report and
other cases wherein this court found that conditions in Albania had
improved since 2001. In Tota v. Gonzales, we cited the 2004 State
Department Report on Albania and found “greatly improved
conditions” for “individuals who suffered past persecution on
political grounds at the hands of the former Communist regime, and
who would be returning to Albania after having fled abroad.” 457
F.3d 161, 167 (1st Cir. 2006). Similarly, in Alibeaj v. Gonzales,
we discussed the 2003 State Department Report and noted that “the
climate for political oppositionists in Albania has fundamentally
improved since 2001.” 469 F.3d 188, 193 (1st Cir. 2006). Thus, in
both Tota and Alibeaj, this court relied on State Department
reports in affirming BIA determinations that petitioners failed to
demonstrate a well-founded fear of persecution.
2
The 2006 State Department Report also makes these findings,
and it generally supports the BIA’s determination that conditions
in Albania have improved since 2001.
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Vasilia argues that the BIA is required to consider and
address all the evidence she submitted. She refers to a Second
Circuit decision that said,
When an applicant moves to reopen his case based on
worsened country conditions, and introduces previously
unavailable reports that materially support his original
application, the BIA has a duty to consider these reports
and issue a reasoned decision based thereon, whether or
not these reports are clearly determinative.
Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) (emphasis in
original). The Poradisova case, however, seems most concerned with
BIA decisions that ignore State Department reports, rather than
decisions that fail to consider other evidence. See id. at 79(noting “the IJ should have taken into account, as apparently she
did not . . . the State Department reports”). In this case, the
BIA clearly did consider the 2005 State Department Report and fully
explained its basis for denying the motion to reopen. Therefore,
despite the failure to discuss the documentation submitted by
Vasilia, the BIA’s decision was not arbitrary or an abuse of
discretion.
PETITION DENIED.
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