Macelara v. Holder

11-4656 BIA
Macelara v. Holder
A028 906 621
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 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 26th day of September, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSEPH M. McLAUGHLIN,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 SKUMBIN MACELARA,
14 Petitioner,
15
16 v. 11-4656
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael P. DiRaimondo, Melville, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; William C.
28 Peachey, Assistant Director; Flor M.
29 Suarez, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Skumbin Macelara, a native and citizen of the former
6 Yugoslavia, in what is now Macedonia, seeks review of an
7 October 13, 2011, order of the BIA denying his motion to
8 reopen. In re Skumbin Macelara, No. A028 906 621 (B.I.A.
9 Oct. 13, 2011). We assume the parties’ familiarity with the
10 underlying facts and procedural history of this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
13 Cir. 2006) (per curiam). A petitioner may file only one
14 motion to reopen, and that motion must be filed within 90
15 days of the date the final administrative decision was
16 rendered, 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
17 § 1003.2(c)(2), unless the motion is based on material
18 evidence of changed country conditions arising in the
19 petitioner’s country of nationality, 8 U.S.C.
20 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
21 Here, there is no dispute that Macelara’s 2011 motion
22 was untimely and number-barred because he previously filed a
23 motion to reopen and his administrative order of removal
24 became final in 1996. See 8 U.S.C. § 1229a(c)(7)(A),
2
1 (C)(i); see also 8 C.F.R. § 1003.2(c)(2). In addition, the
2 evidence of changed conditions in Macedonia submitted with
3 Macelara’s motion, an affidavit by Balkan history professor
4 Dr. Bernd Fischer,1 was insufficient to establish materially
5 changed conditions in Macedonia since his last hearing. See
6 Matter of S-Y-G-, 24 I&N Dec. 247, 253 (BIA 2007) (“In
7 determining whether evidence accompanying a motion to reopen
8 demonstrates a material change in country conditions that
9 would justify reopening, [the BIA] compare[s] the evidence
10 of country conditions submitted with the motion to those
11 that existed at the time of the merits hearing below.”);
12 accord 8 C.F.R. § 1003.2(c)(3)(ii). The BIA considered the
13 evidence in Dr. Fischer’s affidavit of ethnic conflicts for
14 Albanian Muslims, like Macelara, and reasonably concluded
15 that ethnic tensions have been ongoing throughout the
16 history of the region, and do not appear to have worsened in
17 recent years.
18 Macelara’s contention that the BIA violated his due
19 process rights by “fail[ing] to analyze the record as a
20 whole” is not supported by the record, because the BIA
21 considered the evidence he submitted of changed conditions
22 in Macedonia, and provided adequate findings regarding that
1
Contrary to Macelara’s assertion, the BIA credited
Dr. Fischer as an expert in Balkan history.
3
1 evidence. See Burger v. Gonzales, 498 F.3d 131, 134 (2d
2 Cir. 2007) (“[t]o establish a violation of due process, an
3 alien must show that []he was denied a full and fair
4 opportunity to present [his] claims or that the IJ or BIA
5 otherwise deprived [him] of fundamental fairness” (internal
6 quotation marks omitted)). To the extent Macelara argues
7 that the BIA is “systematically denying” motions to reopen
8 based on an “excessively high standard,” he has provided no
9 evidence to support this claim. See INS v. Phinpathya, 464
10 U.S. 183, 188 n.6 (1984) (statements of counsel in a brief
11 are not evidence).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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