Vataksi v. Holder

12-1237
Vataksi v. Holder
BIA
Nelson, IJ
A073 666 573
A072 417 925
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 5th day of June, two thousand thirteen.
5
6 PRESENT: JON O. NEWMAN,
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges.
10 _________________________________________
11
12 YLBERE VATAKSI, MEHMET VATAKSI,
13 Petitioners,
14
15 v. 12-1237
16 NAC
17 ERIC H. HOLDER, JR., UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20 _________________________________________
21
22 FOR PETITIONERS: Sokol Braha, New York, New York.
23
24 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
25 Assistant Attorney General; John S.
26 Hogan, Senior Litigation Counsel;
27 Todd J. Cochran, Trial Attorney,
28 Office of Immigration Litigation,
29 United States Department of Justice,
30 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioners Ylbere Vataksi and Mehmet Vataksi, natives
6 and citizens of Albania, seek review of the March 12, 2012,
7 order of the BIA affirming Immigration Judge Barbara A.
8 Nelson’s denial of their motion to reopen. In re Ylbere &
9 Mehmet Vataksi, Nos. A073 666 573, A072 417 925 (B.I.A. Mar.
10 12, 2012), aff’g Nos. A073 666 573, A072 417 925 (Immig. Ct.
11 N.Y. City Jan. 19, 2011). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 of the case.
14 The BIA’s denial of the Vataksis’ motion to reopen as
15 untimely was not an abuse of discretion. See Kaur v. BIA,
16 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An alien may
17 file one motion to reopen, generally no later than 90 days
18 after the date on which the final administrative decision
19 was rendered in the proceedings sought to be reopened.
20 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
21 There is no dispute that the Vataksis’ 2011 motion was
22 untimely, as their final administrative order was issued in
2
1 1997. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
2 § 1003.2(c)(2). The time limitation does not apply to a
3 motion to reopen if it is “[t]o apply or reapply for asylum
4 or withholding of deportation based on changed circumstances
5 arising in the country of nationality or in the country to
6 which deportation has been ordered, if such evidence is
7 material and was not available and could not have been
8 discovered or presented at the previous hearing.” 8 C.F.R.
9 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
10 However, substantial evidence supports the BIA’s finding
11 that the Vataksis failed to establish a material change in
12 conditions in Albania. See Jian Hui Shao v. Mukasey, 546
13 F.3d 138, 169 (2d Cir. 2008).
14 The Vataksis argue that the BIA failed to consider all
15 of their evidence of changed conditions. In their motion to
16 reopen, the Vataksis alleged a change in country conditions
17 based upon the following events that occurred after their
18 1997 hearing: (1) Mehmet’s father was attacked for his
19 political beliefs in 2000; (2) Mehmet’s sister was attacked
20 and raped after giving a political speech in 2008;
21 (3) Mehmet’s cousin was attacked in 2005, and the motive was
22 political revenge against their clan; and (4) Ylbere’s uncle
3
1 was killed as part of a long-standing blood feud in 1999.
2 As the BIA found, these allegations do not demonstrate a
3 material change. As a general matter, “an asylum applicant
4 cannot claim past persecution based solely on harm that was
5 inflicted on a family member on account of that family
6 member’s political opinion or other protected
7 characteristic.” See Tao Jiang v. Gonzales, 500 F.3d 137,
8 141 (2d Cir. 2007); Shao Yan Chen v. U.S. Dep’t of Justice,
9 417 F.3d 303, 305 (2d Cir. 2005); Melgar de Torres v. Reno,
10 191 F.3d 307, 313 n.2 (2d Cir. 1999). Because the Vataksis
11 did not present evidence that Mehmet’s father or sister were
12 attacked for anything but their own political beliefs, the
13 BIA did not abuse its discretion in concluding that these
14 two events did not demonstrate a material change in country
15 conditions. See Tao Jiang, 500 F.3d at 141.
16 The Vataksis also argue that the death of Mehmet’s
17 cousin in 2005 was for political revenge against his clan
18 and that the BIA failed to consider the contemporaneous
19 newspaper reports of the incident. However, the articles
20 were not evidence of a material change as they state that
21 the police were considering both revenge and theft as
22 possible motives, and there was no indication in the
4
1 articles that revenge meant an attack due to political or
2 clan affiliation. See Tao Jiang, 500 F.3d at 141; Melgar de
3 Torres, 191 F.3d at 313 n.2. Similarly, regarding Ylbere’s
4 family’s blood feud, there was insufficient evidence that
5 her uncle was targeted because of that feud as the BIA was
6 not required to credit their account given the underlying
7 adverse credibility finding. See Qin Wen Zheng v. Gonzales,
8 500 F.3d 143, 146-49 (2d Cir. 2007) (declining to credit
9 unauthenticated evidence based on an underlying adverse
10 credibility determination). Thus, the BIA did consider the
11 evidence provided by the Vataksis, and its denial of their
12 motion to reopen was not an abuse of discretion. See Jian
13 Hui Shao, 546 F.3d at 169 (noting that the BIA does not need
14 to expressly parse or refute every piece of evidence
15 submitted by the petitioner).
16 In addition, because the Vataksis have not established
17 that the BIA’s denial of sua sponte reopening was based on a
18 misperception of the law, we lack jurisdiction to review
19 that determination because it is “entirely discretionary.”
20 Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). Cf.
21 Mahmood v. Holder, 570 F.3d 466, 469-71 (2d Cir. 2009)
22 (asserting jurisdiction and holding that the BIA erred when
23 it declined to exercise its sua sponte authority based on a
24 misperception of the law).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
6