Dedi v. Holder

10-532-ag (L)
Dedi v. Holder
BIA
A078 519 705
A098 358 211
A098 358 212
A098 358 213
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
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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 A SUMMARY
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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 6th day of April, two thousand twelve.
PRESENT:
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
DAVID DEDI, also known as ANTONIO
DI MEGLIO, ALBINE DEDI, KLODJANA DEDI,
XHULIO DEDI
Petitioners,
v. 10-532-ag(L);
10-2639-ag(Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Nicole K. Trivlis, Carmel, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Luis E. Perez, Senior
Litigation Counsel; Briena L.
Strippoli, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
David and Albine Dedi and their children Klodjana and
Xhulio, natives and citizens of Albania, seek review of the
January 21, 2010, and June 10, 2010, decisions of the BIA
denying their motions to reopen. In re David Dedi, No. A078
519 705 (B.I.A. Jan. 21, 2010); In re Albine Dedi, Klodjana
Dedi, Xhulio Dedi, Nos. A098 358 211/212/213 (B.I.A. June
10, 2010). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005). We review for substantial evidence the BIA’s
evaluation of country conditions evidence submitted with a
motion to reopen. Jian Hui Shao v. Mukasey, 546 F.3d 138,
169 (2d Cir. 2008).
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It is beyond dispute that petitioners’ motions to
reopen were untimely, as they were filed nearly six years
after the agency’s order of removal became final in Mr.
Dedi’s case and nearly two years after the agency’s order of
removal became final in Mrs. Dedi’s case. See 8 U.S.C.
§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). This time
limitation does not apply, however, to a motion to reopen
asylum proceedings that is “based on changed circumstances
arising in the country of nationality or in the country to
which 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.” 8 C.F.R.
§ 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C).
Here, petitioners argue that they demonstrated changed
conditions in Albania and that the BIA failed to adequately
consider the evidence they submitted in support of their
motion.
Contrary to petitioners’ argument, there is no
indication that the BIA ignored any evidence they submitted,
given that the BIA explicitly referred to their evidence in
its decision. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 336 n.17 (2d Cir. 2006) (presuming that the
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agency “has taken into account all of the evidence before
[it], unless the record compellingly suggests otherwise”).
In declining to find changed country conditions, the
BIA reasonably determined that the letters from five
individuals in Albania were not sufficient because they were
the same conditions that were alleged at the time of the
initial hearing, and no other objective evidence was
submitted. While the fact that evidence submitted in
support of changed country conditions is of the same type
that motivated a petitioner’s claim of asylum initially is
not always enough, on its own, to preclude a finding of
changed country conditions, see Poradisova v. Gonzales, 420
F.3d 70, 81-82 (2d Cir. 2005)(finding that even where same
conditions existed at the time of original asylum
application, BIA must consider the evidence in the record in
determining whether there was a change in intensity, if not
type, of country conditions), the BIA was within its
discretion to conclude that the five affidavits did not
constitute material evidence of changed circumstances.
Petitioners also contend that the BIA erred in finding
that the motion did not address the underlying adverse
credibility determination made by the IJ at Mr. Dedi’s
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merits hearing and in failing to grant their claim for
humanitarian asylum; they further argue that they
established their prima facie eligibility for withholding of
removal and relief under the Convention Against Torture.
Because the BIA reasonably determined that Petitioners did
not establish changed conditions in Albania, and thus did
not abuse its discretion by denying the motion as time-
barred, we need not reach these issues.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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