Beqiri v. Attorney General of United States

IMG-192 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2163
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EMINE BEQIRI AND BARDHYL BEQIRI,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A073-607-454 and A090-660-298)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 5, 2010
Before: FUENTES, ROTH and VAN ANTWERPEN, Circuit Judges
(Opinion filed: May 24, 2010)
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OPINION
___________
PER CURIAM
Bardhyl Beqiri and Emine Beqiri (“the Beqiris”), husband and wife, petition for
review of the Board of Immigration Appeals’ (“BIA”) April 15, 2009 order denying their
motion to reopen their immigration proceedings. We will deny the petition.
I.
The Beqiris are natives of former Yugoslavia and citizens of Macedonia. They
entered the United States in January 1987 and were placed in deportation proceedings by
service of an order to show cause in April 1995. Seeking relief from deportation, the
Beqiris applied for asylum and withholding of deportation, claiming past persecution
because of their status as ethnic Albanians and practicing Muslims living in Macedonia.
The immigration judge (“IJ”) denied the Beqiris’ application, and the BIA affirmed the
IJ’s decision in February 2001. The Beqiris did not file an appeal.
In October 2008, Bardhyl Beqiri was taken into custody. That same month,
through counsel, the Beqiris filed a motion to reopen and motion for a stay of deportation
with the BIA. The BIA denied both motions in November 2008. The Beqiris again did
not appeal. After obtaining new counsel, the Beqiris filed a second motion to reopen in
January 2009, arguing that there have been material changes in the treatment of ethnic
Albanians living in Macedonia since the BIA closed their immigration proceedings in
2001. The BIA concluded that the alleged changed conditions were not material and, in
an April 2009 decision, denied the Beqiris’ motion to reopen as both untimely and
number barred. This petition for review followed.
II.
Although we have jurisdiction to review the BIA’s order denying the Beqiris’
motion to reopen, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003), the
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scope of our review is limited. INS v. Doherty, 502 U.S. 314, 323 (1992). Under the
regulations, the BIA “has discretion to deny a motion to reopen even if the party moving
has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). As the Supreme Court
has stated, the regulations “plainly disfavor” such motions. INS v. Abudu, 485 U.S. 94,
110 (1988). Accordingly, we review the BIA’s denial of a motion to reopen for abuse of
discretion with “broad deference” to its decision. Ezeagwuna, 325 F.3d at 409. Thus, in
order to succeed on the petition for review, the Beqiris must show that the BIA’s
discretionary decision was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20
F.3d 580, 582 (3d Cir. 1994) (quotation omitted).
III.
A motion to reopen must be filed no later than ninety days after the date on which
the final administrative decision was rendered in the proceeding sought to be reopened.
See 8 C. F. R. § 1003.2(c)( 2). In addition, petitioners are typically barred from filing
more than one motion to reopen. Id. The Beqiris filed their second motion to reopen in
January 2009, far outside of the time limit. However, under 8 C.F.R. § 1003.2(c)(3)(ii),
petitioners may escape the numerical and time limitations set forth in § 1003.2(c)(2) by
establishing changed country conditions arising in the country to which removal has been
ordered, if such evidence is material and was not available and could not have been
discovered or presented at the previous proceeding. See 8 C.F.R. § 1003.2(c)(3)(ii).
As mentioned, the Beqiris sought to reopen their proceedings by arguing that
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conditions for ethnic Albanians living in Macedonia have materially changed since the
BIA ordered their removal in February 2001. As primary support for their argument, the
Beqiris submitted an affidavit from Dr. Bernd Fischer, a professor of Balkan history at
Indiana University and consultant with the Executive Office for Immigration Review. Dr.
Fischer opined that the Beqiris suffered past persecution and that they would face a
reasonable possibility of persecution if returned to Macedonia because of: (1) Bardhyl
Beqiri’s status as an ethnic Albanian; (2) his Muslim religion; (3) past treatment by the
State Police during the Communist regime; and (4) the Beqiris’ long-term presence in the
United States. (A.R. 64.)1 Dr. Fischer further opined that conditions for ethnic Albanians
living in Macedonia have worsened since the Beqiris’ first deportation hearing in 1995.
(Id.)
The BIA acknowledged that the changed country conditions exception set forth in
§ 1003.2(c)(3)(ii) might apply to the Beqiris’ case, and therefore reviewed Dr. Fischer’s
affidavit as well as a 2008 Amnesty International Report for Macedonia that the Beqiris
presented with their motion. After reviewing the evidence, the BIA concluded that the
evidence did not demonstrate a material change in the mistreatment of ethnic Albanians in
Macedonia and, thus, the Beqiris were not entitled to relief under § 1003.2(c)(3)(ii).
After reviewing the record, we conclude that the BIA did not abuse its discretion
1
The immigration judge determined, however, that the Beqiris had not suffered past
persecution when he denied their application for asylum in 1995. (A.R. 39-40.)
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in denying the Beqiris’ motion to reopen. While Dr. Fischer’s affidavit provides a
historical account of the tensions between ethnic Albanians and Macedonians and
describes some recent incidents of violence directed against ethnic Albanians by
Macedonian military and police, the affidavit fails to establish that the problems faced by
ethnic Albanians are more prevalent now than they were at the time of the Beqiris’ prior
administrative proceedings. We also agree with the BIA that there is no indication in the
2008 Amnesty International Report for Macedonia that conditions have materially
worsened for ethnic Albanians since the Beqiris’ last hearing.
Contrary to the Beqiris’ contention, we conclude that the BIA’s decision reflects
that it fairly considered the record evidence. While the BIA may not have explicitly
commented on a single-page article from Crisis Watch that the Beqiris also presented
with their motion to reopen, as we have previously explained, “[c]onsideration of all
evidence does not require comment on all evidence.” Thu v. Att’y Gen., 510 F.3d 405,
416 n.16 (3d Cir. 2007); cf. Zheng v. Att’y Gen., 549 F.3d 260, 271 (3d Cir. 2008)
(holding that BIA’s decision was inadequate because it “fail[ed] to offer even a cursory
review of the record”). Moreover, that article only provides a brief statement on the
2008 parliamentary elections in Macedonia, which Dr. Fischer also discussed in his
affidavit; it does not offer evidence of changed conditions.2
2
The Beqiris also argue in a supplemental letter, which we construe as a letter pursuant
to Fed. R. App. P. 28(j), that they are entitled to relief because an immigration judge
reopened a similar case in 2009. They assert that “[t]he motion in [that] case is virtually
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Lastly, the Beqiris argue that the BIA should have permitted an IJ to consider their
application for protection under the Convention Against Torture (“CAT”) because their
prior deportation proceedings were concluded before such relief was available. The
argument is without merit. While it is true that relief under the CAT was not available at
the time of their prior administrative proceeding, aliens whose orders of deportation
became final prior to the implementation of the CAT had until June 21, 1999, to file a
motion to reopen. See 8 C.F.R. § 208.18(b)(2)(i). The Beqiris did not do so.
Having found no abuse of discretion on the part of the BIA in denying the Beqiris’
motion to reopen, we will deny the petition for review.
identical to the motion filed in [their] case.” (See Supp. at 1.) However, the Beqiris have
not provided us with copy of the motion in that case and it is unclear what evidence the IJ
may have relied on in reaching its conclusion. Accordingly, we do not find the ruling in
that case instructive in our evaluation of the Beqiris’ petition for review.
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