Kuka v. Garland

19-3140
Kuka v. Garland
BIA
A078 690 281/282
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 TO 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 for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 24th day of August, two thousand
4 twenty-one.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 GUIDO CALABRESI,
10 RICHARD J. SULLIVAN,
11 Circuit Judges.
12 _____________________________________
13
14 SHPETIM KUKA, LUZIME KUKA,
15 Petitioner,
16
17 v. 19-3140
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24
1 FOR PETITIONER: Karin Anderson Ponzer, Neighbors Link
2 Community Law Practice, Ossining, NY.
3
4 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General;
5 Kiley Kane, Senior Litigation Counsel; Robbin
6 K. Blaya, Trial Attorney, Office of
7 Immigration Litigation, United States
8 Department of Justice, Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
11 DECREED that the petition for review is DENIED.
12 Petitioners Shpetim and Luzime Kuka, natives and citizens of Albania, seek
13 review of a September 4, 2019 decision of the BIA denying their motion to reopen
14 their immigration proceedings. In re Shpetim Kuka, No. A 078 690 281/282 (B.I.A.
15 Sept. 4, 2019). We review the BIA’s decision to deny the Kukas’ motion for abuse
16 of discretion, and we review the BIA’s findings of fact for substantial
17 evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). We
18 assume the parties’ familiarity with the underlying facts and procedural history.
19 It is undisputed that the Kukas’s motion to reopen was number-barred and
20 untimely because it was their fifth motion to reopen, filed almost 13 years after
21 their 2006 removal order. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
22 § 1003.2(c)(2). The Kukas nevertheless argue that their 2019 motion to reopen
2
1 was proper because Luzime had become permanently disabled and the country
2 conditions in Albania had materially changed in the interim. But while it is true
3 that § 1229a(c)(7) permits petitioners to bring otherwise time- and number-barred
4 motions to reopen “based on changed country conditions,” the statute also
5 requires petitioners to present evidence of those changed conditions that “is
6 material and was not available and would not have been discovered or presented
7 at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
8 § 1003.2(c)(3)(ii).
9 The BIA reasonably determined that the Kukas failed to establish a material
10 change in conditions in Albania as needed to excuse the number and time
11 limitations. “In determining whether evidence accompanying a motion to
12 reopen demonstrates a material change in country conditions that would justify
13 reopening, [the agency] compare[s] the evidence of country conditions submitted
14 with the motion to those that existed at the time of the merits hearing below.” In
15 re S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007). Under this standard, changed
16 personal circumstances such as Luzime’s disability are distinct from changed
17 country conditions. See Wei Guang Wang v. BIA, 437 F.3d 270, 273–74 (2d Cir.
18 2009).
3
1 And though the Kukas submitted evidence indicating a prevalence of
2 government corruption, political tensions, and a failing healthcare system in
3 Albania, the evidence did not show that conditions in Albania were materially
4 worse than at the time of the Kukas’s 2005 hearing before the immigration judge
5 (“IJ”). Indeed, the 2004 State Department Country Report, which was before the
6 IJ, described “widespread corruption,” violent political protests, poor medical
7 care, and “budgetary constraints [that] greatly limited” the amount of public
8 assistance for those with disabilities. App’x at 2673, 2683. The evidence the
9 Kukas submitted to the BIA in 2019 in support of reopening reflected similar
10 hardships for those with disabilities, but it did not establish that Albania’s
11 conditions have materially worsened. In fact, the 2018 State Department Country
12 Report relied upon by the Kukas actually described some improvements in
13 Albania, including constitutional and legal protections for individuals with
14 disabilities, the opening of two new development centers for persons with
15 disabilities, and the implementation of government-sponsored social services.
16 Thus, the record supports the BIA’s conclusion that the Kukas failed to
17 demonstrate a material worsening of conditions for similarly situated people in
4
1 Albania as needed to excuse the time and number bars to their motion. See 8
2 U.S.C. § 1229a(c)(7)(C)(ii).
3 Because the record supports the BIA’s conclusion that the Kukas failed to
4 demonstrate a material worsening of conditions for similarly situated people in
5 Albania, the BIA did not abuse its discretion in denying their motion to reopen.
6 See 8 U.S.C. § 1229a(c)(7)(A), (C); Abudu, 485 U.S. at 104–05. Accordingly, the
7 petition for review is DENIED. All pending motions and applications are
8 DENIED and stays VACATED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
5