Kurtaj v. Holder , 361 F. App'x 190 ( 2010 )

09-1023-ag
Kurtaj v. Holder
BIA
A 095 468 072
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15 th day of January, two thousand ten.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11 _______________________________________
12
13 ARBEN KURTAJ,
14 Petitioner,
15
16 v. 09-1023-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Charles Christophe, New York, New
24 York.
25
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Linda S. Wernery, Assistant
3 Director; Elizabeth Young, Trial
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED, that the petition for review
11 is DENIED.
12 Petitioner Arben Kurtaj, a native and citizen of
13 Albania, seeks review of the February 23, 2009 order of the
14 BIA denying his motion to reopen. In re Arben Kurtaj, No. A
15 095 468 072 (B.I.A. Feb. 23, 2009). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 of the case.
18 We review the BIA’s denial of a motion to reopen for
19 abuse of discretion, mindful of the Supreme Court’s
20 admonition that such motions are “disfavored.” Ali v.
21 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
22 Doherty, 502 U.S. 314, 323 (1992)). We find that the BIA
23 did not abuse its discretion in denying Kurtaj’s motion to
24 reopen.
25 The BIA properly concluded that Kurtaj did not
26 demonstrate changed country conditions in Albania sufficient
2
1 to excuse his untimely filing. See 8 C.F.R.
2 § 1003.2(c)(3)(ii). Although Kurtaj submitted new evidence
3 describing violent conditions in Albania, that evidence did
4 not suggest that the Albanian authorities were specifically
5 seeking out members of the Albanian Democratic Party for
6 persecution . Therefore, such generalized evidence was
7 insufficient to establish Kurtaj’s eligibility for relief.
8 See Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir.
9 1999). Furthermore, although the BIA did not give
10 individualized consideration to the evidence Kurtaj
11 submitted, we will “presume that [the BIA] has taken into
12 account all of the evidence before [it], unless the record
13 compellingly suggests otherwise.” Xiao Ji Chen v. U.S.
14 Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006).
15 The BIA also found that Kurtaj failed to meet the
16 “heavy burden” of demonstrating that the new evidence he
17 submitted “would likely change the outcome in his case.” We
18 find no error in that conclusion. The BIA properly found
19 that Kurtaj failed to establish that the new evidence he
20 submitted would likely change the outcome of his case, where
21 his motion to reopen was based on the same events that the
22 IJ previously found not credible. See Paul v. Gonzales, 444
3
1 F.3d 148, 155 n.5; Qin Wen Zheng v. Gonzales, 500 F.3d 143,
2 147-48 (2d Cir. 2007).
3 Finally, although Kurtaj argues that the BIA erred in
4 refusing to reopen his case sua sponte, we lack jurisdiction
5 to review a decision of the BIA not to reopen a case sua
6 sponte under 8 C.F.R. § 1003.2(a), because such a decision
7 is “entirely discretionary.” Ali v. Gonzales, 448 F.3d 515,
8 518 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
21 By:___________________________
4