Ndoci v. Barr

19-1008
Ndoci v. Barr
BIA
A079 727 140
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 30th day of October, two thousand twenty.
5
6 PRESENT:
7 GERARD E. LYNCH,
8 MICHAEL H. PARK,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 ALBANA NDOCI, AKA XHILIOLA LALA,
14 Petitioner,
15
16 v. 19-1008
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua Bardavid, Esq., New York,
24 NY.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General; Linda
28 S. Wernery, Assistant Director;
29 Steven K. Uejio, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
32 Justice, Washington, DC.
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 Petitioner Albana Ndoci, a native and citizen of Albania,
6 seeks review of a March 19, 2019, decision of the BIA denying
7 her motion to reopen. In re Albana Ndoci, No. A 079 727 140
8 (BIA Mar. 19, 2019). We assume the parties’ familiarity with
9 the underlying facts and procedural history in this case. The
10 applicable standards of review are well established. See
11 Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008).
12 Ndoci moved to reopen her proceedings based on her fear
13 of future persecution and alleged a material change in country
14 conditions because the Socialist Party had regained control
15 of the Albanian government. It is undisputed that Ndoci’s
16 motion to reopen was time- and number-barred because it was
17 her second motion to reopen filed more than a decade after
18 she was ordered removed. See 8 U.S.C. § 1229a(c)(7)(A),
19 (C)(i); 8 C.F.R. § 1003.2(c)(2). However, the time and
20 numerical limitations do not apply if the motion is to reopen
21 proceedings in order to apply for asylum “based on changed
22 country conditions arising in the country of nationality or
23 the country to which removal has been ordered, if such
2
1 evidence is material and was not available and would not have
2 been discovered or presented at the previous
3 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
4 8 C.F.R. § 1003.2(c)(3)(ii).
5 The BIA reasonably determined that Ndoci failed to
6 establish a material change in conditions in Albania as needed
7 to excuse her untimely filing. “In determining whether
8 evidence accompanying a motion to reopen demonstrates a
9 material change in country conditions that would justify
10 reopening, [the agency] compare[s] the evidence of country
11 conditions submitted with the motion to those that existed at
12 the time of the merits hearing below.” Matter of S-Y-G-, 24
13 I&N Dec. 247, 253 (BIA 2007). Contrary to Ndoci’s
14 assertions, a change of the political party in power does not
15 necessarily establish a material change in country
16 conditions.
17 To support her claim, Ndoci submitted evidence that
18 indicated a prevalence of government corruption, widespread
19 political protest, and tensions between opposing political
20 parties. This evidence did not show that conditions were
21 materially worse than those at the time of her 2006 hearing
22 before the immigration judge (“IJ”). For example, the 2006
23 State Department Country Report for Albania described
3
1 “endemic corruption” and provided a history of political
2 violence in the late 1990s but reported “no outbreaks of
3 political violence since 1998” or current “indications of
4 systemic political persecution.” U.S. Dep’t of State, Bureau
5 of Democracy, H.R. & Lab., Albania: Profile of Asylum Claims
6 and Country Conditions 3 (2006). Also before the IJ was a
7 2002 Country Report reflecting that “corruption remained a
8 major impediment” and that arbitrary arrest and detention
9 were significant problems. U.S. Dep’t of State, Bureau of
10 Democracy, H.R. & Lab., Albania: Country Reports on Human
11 Rights Practices – 2002 (2003). The evidence Ndoci submitted
12 in support of reopening reflects similar circumstances or
13 positive changes even after the Socialist Party regained
14 control in 2013. The 2017 State Department Country Report,
15 for example, indicates that the Albanian government has taken
16 steps to combat corruption and to secure orderly elections.
17 Thus, the record supports the BIA’s conclusion that Ndoci
18 failed to demonstrate a material worsening of conditions for
19 similarly situated people in Albania as needed to excuse the
20 time and number bars to her motion. See 8 U.S.C.
21 § 1229a(c)(7)(C)(ii).
22 To the extent that Ndoci’s motion relied on an affidavit
23 prepared by Dr. Bernd Fischer, the BIA did not err in finding
4
1 that the affidavit failed to establish Ndoci’s prima facie
2 eligibility for asylum. See INS v. Abudu, 485 U.S. 94, 104
3 (1988) (listing failure to establish prima facie eligibility
4 for the “underlying substantive relief sought” as basis for
5 denial of reopening). In order to establish a well-founded
6 fear of future persecution, an applicant must show either a
7 reasonable possibility that she would be “singled out” for
8 persecution or that the country of removal has a “pattern or
9 practice” of persecuting individuals “similarly situated” to
10 her. 8 C.F.R. § 1208.13(b)(2)(iii). Dr. Fischer’s
11 affidavit described Albania’s high levels of corruption and
12 crime, as well as political instability and occasional
13 clashes between opposition parties, but such isolated
14 incidents are insufficient to support Ndoci’s claim that she
15 would be singled out for persecution or that there is a
16 pattern or practice of persecution of people who are similarly
17 situated. See Jian Hui Shao, 546 F.3d at 153, 163–65
18 (agreeing with BIA’s conclusion that isolated incidents of
19 persecution in country reports are insufficient to establish
20 that an applicant will be singled out for persecution or a
21 pattern or practice of persecution); see also Matter of A-M-,
22 23 I&N Dec. 737, 741 (BIA 2005) (defining pattern or practice
23 as the “systemic or pervasive” persecution of a group).
5
1 Because the record supports the BIA’s conclusion that
2 Ndoci failed to demonstrate either a material worsening of
3 conditions for similarly situated people in Albania as needed
4 to excuse the time and number limitations or her prima facie
5 eligibility for relief, the BIA did not abuse its discretion
6 in denying her motion to reopen. See 8 U.S.C.
7 § 1229a(c)(7)(A), (C); Abudu, 485 U.S. at 104–05.
8 For the foregoing reasons, the petition for review is
9 DENIED. All pending motions and applications are DENIED and
10 stays VACATED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
14
6