Ameti v. Holder

11-5170
Ameti v. Holder
BIA
A071 495 694
A071 495 695
A071 495 697
A071 495 698
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of October, two thousand thirteen.
PRESENT:
ROBERT D. SACK,
PETER W. HALL,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
BESIM AMETI, SHGIPE AMETI,
BESART AMETI, MERGIM AMEIT,
Petitioner,
v. 11-5170
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Michael P. DiRaimondo, Melville, New
York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; William C.
Peachey, Assistant Director; Matthew
A. Spurlock, 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.
Besim Ameti, Shgipe Ameti, Besart Ameti, and Mergim
Ameti, natives of the former Yugoslavia and citizens of
Macedonia, seek review of a November 21, 2011, order of the
BIA denying their motion to reopen. In re Besim Ameti,
Shgipe Ameti, Besart Ameti, Mergim Ameti, Nos. A071 495
694/695/697/698 (B.I.A. Nov. 21, 2011). 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. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006) (per curiam). A petitioner may file only one
motion to reopen, and that motion must be filed within 90
days of the date the final administrative decision was
rendered, 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
Here, the BIA did not abuse its discretion in denying
Petitioners’ 2011 motion to reopen as untimely and number-
barred because the BIA issued its final order of deportation
in 2001, and the 2011 motion to reopen was the Petitioners’
third such motion. See 8 U.S.C. § 1229a(c)(7)(A)(C)(i); see
also 8 C.F.R. § 1003.2(c)(2).
Furthermore, contrary to Petitioners’ assertion, the
BIA did not abuse its discretion in denying their motion for
failure to comply with the governing regulatory requirements
because their motion was not supported with a new asylum
application. See 8 C.F.R. § 1003.2(c)(1).
Moreover, the evidence of changed conditions in
Macedonia submitted with Petitioners’ motion to reopen, an
affidavit by Balkan history professor Dr. Bernd Fischer, was
insufficient to establish materially changed conditions in
Macedonia since the time of their 1995 merits hearing.
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See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007)
(“[I]n determining whether evidence accompanying a motion to
reopen demonstrates a material change in country conditions
that would justify reopening, [the BIA] compare[s] the
evidence of country conditions submitted with the motion to
those that existed at the time of the merits hearing
below.”); accord 8 C.F.R. § 1003.2(c)(3)(ii). The BIA
considered Dr. Fischer’s affidavit, and it reasonably
concluded that ethnic tensions have been ongoing throughout
the history of the region and do not appear to have
materially worsened in recent years.
Petitioners’ contention that the BIA violated their due
process rights by “fail[ing] to analyze the record as a
whole” is not supported by the record because the BIA
considered the evidence they submitted of changed conditions
in Macedonia and provided adequate findings regarding that
evidence. See Burger v. Gonzales, 498 F.3d 131, 134 (2d
Cir. 2007) (“[t]o establish a violation of due process, an
alien must show that []he was denied a full and fair
opportunity to present [his] claims or that the IJ or BIA
otherwise deprived [him] of fundamental fairness” (internal
quotation marks omitted)). To the extent Petitioners argue
that the BIA is “systematically denying” motions to reopen
by “not considering the evidence cumulatively,” they have
provided no evidence to support this claim.
See INS v. Phinpathya, 464 U.S. 183, 188 n. 6 (1984)
(statements of counsel in a brief are not evidence).
Finally, Petitioners argument that the BIA erred by failing
to grant their request for humanitarian relief is without
merit as the BIA properly determined that it retains
authority to grant only those forms of relief that are
expressly authorized by Congress and delegated by the
Attorney General, which does not include the power to grant
equitable remedies or general humanitarian relief.
See Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir. 2003)
(citing Matter of Medina, 19 I. & N. Dec. 734, 741-42, 746
(BIA 1988)).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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