Kolami v. Holder , 602 F. App'x 22 ( 2015 )

13-2766 (L); 13-4098 (Con)
Kolami v. Holder
BIA
A095 356 335
A095 356 336
A095 356 337
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 13th day of March, two thousand fifteen.
PRESENT:
DENNIS JACOBS,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
VALENT KOLAMI, GENTIANA KOLAMI,
FRANC KOLAMI,
Petitioners,
v. 13-2766 (L);
13-4098 (Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Michael P. DiRaimondo, DiRaimondo &
Masi, LLP, Melville, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; John S. Hogan, Senior
Litigation Counsel; Aimee J.
Carmichael, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petitions for review
are DENIED.
Petitioners Valent Kolami, his wife Gentiana, and their
son Franc, natives and citizens of Albania, seek review of a
July 18, 2013 decision of the BIA denying their second
untimely motion to reopen, In re Valent Kolami, Gentiana
Kolami, Franc Kolami, Nos. A095 356 335/6/7 (B.I.A. July 18,
2013), and an October 25, 2013 decision of the BIA denying
their third untimely motion to reopen, In re Valent Kolami,
Gentiana Kolami, Franc Kolami, Nos. A095 356 335/6/7 (B.I.A.
Oct. 25, 2013). We assume the parties’ familiarity with the
underlying facts and procedural history.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006) (per curiam). An alien seeking to reopen
proceedings is required to file a motion to reopen no later
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than 90 days after the date on which the final
administrative decision was rendered and is permitted to
file only one such motion. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
dispute that Petitioners’ second and third motions to
reopen, filed in April 2012 and September 2013, were
untimely and number-barred because their orders of removal
became final in 2004. 8 U.S.C. § 1101(a)(47)(B)(i).
Petitioners contend, however, that worsened conditions
accompanying the 2013 Albanian elections and ineffective
assistance of counsel excuse these time and number
limitations.
I. Ineffective Assistance of Counsel: Dkt. Nos.
13-2766 (L); 13-4098 (Con)
The applicable time and number limitations on motions
to reopen may be equitably tolled to accommodate claims of
ineffective assistance of counsel. Rashid v. Mukasey, 533
F.3d 127, 130 (2d Cir. 2008); Jin Bo Zhao v. INS, 452 F.3d
154, 159-60 (2d Cir. 2006) (per curiam). However, the
movant is required to demonstrate “due diligence” in
pursuing a claim during “both the period of time before the
ineffective assistance of counsel was or should have been
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discovered and the period from that point until the motion
to reopen is filed.” Rashid, 533 F.3d at 132. We have
noted that “there is no period of time which . . . is per se
unreasonable, and, therefore, disqualifies a petitioner from
equitable tolling–or, for that matter, any period of time
that is per se reasonable.” Jian Hua Wang v. BIA, 508 F.3d
710, 715 (2d Cir. 2007).
The BIA did not err in finding that Petitioners had not
acted with due diligence because not until nearly thirteen
months after discovering their counsel’s ineffective
assistance did they file a motion to reopen that complied
with Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).
See Rashid, 533 F.3d at 132-33 (holding that petitioner
failed to exercise due diligence when, after he knew or
should have known of his initial counsel’s alleged
ineffective assistance, he waited 14 months to further
pursue his case); Jian Hua Wang, 508 F.3d at 715 (holding
that waiting 8 months after the receipt of relevant
documents did not demonstrate due diligence). Although
Petitioners argued that they were unable to file a formal
Lozada complaint after discovering their counsel’s
ineffective assistance because Valent was at risk of being
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imminently removed, during the same time period Gentiana
executed the affidavits in support of Petitioners’ second
and third motions to reopen and filed the attorney grievance
complaint. It is therefore unclear how Valent’s immigration
detention related to the delay. Indeed, as the government
points out, Petitioners also pursued two petitions for
review in this Court and Valent filed a district court
habeas action during this time.
Petitioners also argue that they did not file a formal
Lozada complaint immediately after learning of their
counsel’s ineffective assistance because they believed that
their first motion to reopen based on changed country
conditions would be successful. However, they fail to
identify any authority suggesting that pursuit of
alternative avenues for relief from removal obviates the
need to diligently pursue ineffective assistance claims. It
also bears mention that the justifications proffered in
Petitioners’ second and third motions to reopen are contrary
to those advanced in their first motion, which stated that,
by the time they discovered the ineffective assistance, the
statute of limitations for filing a Lozada motion had run.
Based on the foregoing, the BIA’s finding that Petitioners
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failed to establish due diligence was not an abuse of
discretion.
Because the BIA did not err in denying reopening for
failure to establish due diligence, we decline to consider
the BIA’s alternative rejection of Petitioners’ ineffective
assistance of counsel claim in Dkt. No. 13-4098 (Con) based
on their failure to establish prejudice.
II. Changed Country Conditions: Dkt. No. 13-4098 (Con)
The applicable time and number limitations on motions
to reopen may also be suspended if the motion is “based on
changed country conditions arising in the country of
nationality . . . if such evidence is material and was not
available and would not have been discovered or presented at
the previous hearing.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8
C.F.R. § 1003.2(c)(3)(ii). Failure to offer such evidence
is, therefore, a proper ground on which the BIA may deny a
motion to reopen, as is the movant’s failure to establish a
prima facie case for the underlying substantive relief
sought. See INS v. Abudu, 485 U.S. 94, 104-05 (1988). When
the BIA considers relevant evidence of country conditions in
evaluating a motion to reopen, we review the BIA’s factual
findings under the substantial evidence standard. See Jian
Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
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The BIA did not abuse its discretion in finding that
Petitioners failed to establish materially changed country
conditions on the basis of Dr. Fischer’s updated
declaration. Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 342 (2d Cir. 2006) (explaining that the weight
accorded to the applicant’s evidence in immigration
proceedings lies largely within the discretion of the
agency). Although Dr. Fischer’s updated declaration
described attacks on local Democratic and Socialist Party
heads and two candidates during the 2013 elections, the BIA
reasonably determined that this evidence was not material
because it did not relate to Petitioners or to their
personal circumstances. See Jian Hui Shao, 546 F.3d at
160-62, 170-72 (concluding that evidence offered in support
of reopening was not material because it did not relate to
similarly-situated individuals). Moreover, the BIA had
previously considered the remaining portions of Dr.
Fischer’s declaration and found them insufficient to
demonstrate materially changed country conditions, which we
affirmed on appeal in Dkt. No. 12-2817. The BIA therefore
did not err in finding that Petitioners failed to establish
materially changed conditions on the basis of Dr. Fischer’s
updated declaration.
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For the foregoing reasons, the petitions for review are
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. The pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b). The pending motion to dismiss
this case voluntarily and remand the matter to the BIA is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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