Kandic v. Garland ( 2022 )

20-189
Kandic v. Garland
BIA
A076 002 014
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 14th day of February, two thousand twenty-two.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12
13 HAKO KANDIC,
14 Petitioner,
15
16 v. 20-189
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gregory Marotta, Law Office of
24 Gregory Marotta, Vernon, NJ.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General;
28 Jessica E. Burns, Senior
29 Litigation Counsel; Juria L.
1 Jones, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Hako Kandic, a native of the former Yugoslavia
10 and citizen of Montenegro, seeks review of a December 19,
11 2019 decision of the BIA denying his third motion to reopen.
12 In re Hako Kandic, No. A 076 002 014 (B.I.A. Dec. 19, 2019).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history.
15 We review the BIA’s denial of a motion to reopen for
16 abuse of discretion. Jian Hui Shao v. Mukasey, 546 F.3d 138,
17 168-69 (2d Cir. 2008). “We will identify such abuse only if
18 the Board’s decision inexplicably departs from established
19 policies or is so devoid of rational explanation as to raise
20 concern that it acted in an arbitrary or capricious manner.”
21 Scarlett v. Barr, 957 F.3d 316, 326 (2d Cir. 2020) (internal
22 quotation marks omitted). We find no abuse of discretion
23 here.
24 Kandic’s motion to reopen, his third such motion, filed
2
1 approximately 15 years after the agency’s final order of
2 removal, was both untimely and number barred. See 8 U.S.C.
3 § 1229a(c)(7)(A), (C)(i) (authorizing petitioner to file one
4 motion to reopen proceedings within 90 days of final
5 administrative order of removal); 8 C.F.R. § 1003.2(c)(2)
6 (same). The time and number limitations do not apply if
7 reopening is sought to apply or reapply for asylum and the
8 motion is “based on changed country conditions arising in the
9 country of nationality or the country to which removal has
10 been ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii). This
11 exception obtains, however, only if such evidence is
12 “material and was not available and would not have been
13 discovered or presented at the previous proceeding.” Id.;
14 accord 8 C.F.R. § 1003.2(c)(3).
15 The BIA did not err in finding that this exception did
16 not apply because Kandic’s evidence was not material. In
17 Kandic’s underlying removal proceedings, the immigration
18 judge (“IJ”) made an adverse credibility determination based
19 on significant inconsistencies between Kandic’s in-court
20 testimony on the one hand and his written asylum application
21 and testimony before an asylum officer on the other.
22 Specifically, Kandic testified inconsistently concerning his
3
1 membership in political parties; his involvement in political
2 demonstrations; and the extent of the harm he suffered on
3 account of such activities.
4 In moving to reopen, Kandic submitted reports and
5 affidavits describing ongoing political tensions in
6 Montenegro, including an affidavit from his brother asserting
7 that police were still looking for Kandic on account of his
8 prior political activities. Because this was the same factual
9 predicate for Kandic’s underlying claim, he was required to
10 rebut the IJ’s adverse credibility determination to secure
11 reopening. See Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.
12 2006) (holding that petitioner can secure reopening
13 notwithstanding IJ’s prior adverse credibility determination
14 if “factual predicate of . . . claim of future persecution is
15 independent of” testimony found not to be credible (emphasis
16 in original)); Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005)
17 (upholding BIA’s denial of motion to reopen on ground that
18 “evidence submitted . . . was not ‘material’ because it did
19 not rebut . . . adverse credibility finding” supporting IJ’s
20 denial of underlying asylum application).
21 The BIA reasonably concluded that Kandic did not rebut
22 the IJ’s adverse credibility determination. Both Kandic’s
4
1 own affidavit and his brother’s maintain that Kandic would be
2 persecuted in Montenegro based on his prior political
3 activities, and his country conditions evidence purports to
4 show worsening political tension in Montenegro. None of this
5 evidence, however, casts doubt on the IJ’s adverse
6 credibility determination because it does not explain the
7 many inconsistencies between Kandic’s in-court testimony and
8 his prior statements. Even if his or his brother’s statements
9 could rehabilitate Kandic’s credibility, the BIA was not
10 required to credit those statements in light of the underlying
11 credibility determination concerning those same facts. See
12 Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147–48 (2d Cir. 2007)
13 (identifying no error in BIA’s rejection of documentary
14 evidence given underlying credibility concerns).
15 Kandic argues that the IJ’s adverse credibility
16 determination violated due process because he had not been
17 prepared to proceed pro se at his hearing. He seeks remand
18 to allow him to testify with the assistance of counsel. In
19 reviewing the denial of a motion to reopen, however, “we are
20 precluded from passing on the merits of the underlying
21 exclusion proceedings” and, instead, must “confine our review
22 to the denial of the petitioner’s motion to reopen.” Paul,
5
1 444 F.3d at 153 (internal quotation marks omitted).
2 Accordingly, where, as here, “an asylum applicant does not
3 file a timely appeal disputing the BIA’s affirmance of the
4 IJ’s credibility ruling” — whether on due process or other
5 grounds — “a motion to reopen does not provide a collateral
6 route by which the [applicant] may challenge the validity of
7 the original credibility determination.” Id. In any event,
8 Kandic does not explain how counsel’s absence during his
9 testimony bore on the credibility determination. He asserts
10 only that he testified under duress due to the lack of
11 counsel. But such a conclusory claim does not persuade given
12 Kandic’s failure, as noted supra, to explain the
13 inconsistencies between his testimony and his prior
14 statements.
15 Accordingly, the BIA did not abuse its discretion in
16 denying Kandic’s motion to reopen because he relied on his
17 original claim and “did not rebut the adverse credibility
18 finding that provided the basis for the IJ’s denial of [his]
19 underlying asylum application.” Kaur, 413 F.3d at 234.
6
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
7