Mitaj v. Garland ( 2022 )

20-1629
Mitaj v. Garland
BIA
A206 189 278
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 20th day of July, two thousand twenty-two.
PRESENT:
GUIDO CALABRESI,
RICHARD J. SULLIVAN,
BETH ROBINSON,
Circuit Judges.
_____________________________________
DANIEL MITAJ,
Petitioner,
v. No. 20-1629
NAC
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
_____________________________________
FOR PETITIONER: Michael P. DiRaimondo, Marialaina L. Masi,
Stacy A. Huber, DiRaimondo & Masi, P.C.,
Bohemia, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
General, Civil Division; Cindy S. Ferrier,
Assistant Director, Office of Immigration
Litigation; Sarai M. Aldana, Trial Attorney,
Office of Immigration Litigation, United
States Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
Petitioner Daniel Mitaj, a native and citizen of Albania, seeks review of the
BIA’s May 7, 2020 decision denying, as untimely, his motion to reopen his removal
proceedings. In re Daniel Mitaj, No. A206 189 278 (B.I.A. May 7, 2020). In
support of his motion before the BIA, Mitaj submitted a report by Dr. Bernd
Fischer, a purported expert on Albania, stating that an individual who previously
attacked Mitaj in revenge for reporting a robbery to police would continue to
target him, that the two primary political parties in Albania are a threat to
members of the Christian Democracy Party to which Mitaj belongs, and that there
has been a rise in Islamic fundamentalism. Before this Court, Mitaj argues
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primarily that Dr. Fischer’s report constituted material evidence of changed
country conditions in Albania, such that the BIA abused its discretion by finding
the report insufficient to excuse Mitaj’s otherwise-untimely filing of his motion.
In the alternative, he argues that the BIA violated due process by failing to
adequately consider Dr. Fischer’s report.
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). Because motions to
reopen are generally disfavored in light of the “strong public interest in bringing
litigation to a close as promptly as is consistent with the interest in giving the
adversaries a fair opportunity to develop and present their respective cases,” INS
v. Abudu, 485 U.S. 94, 107 (1988) – and particularly so in immigration cases, where
“as a general matter, every delay works to the advantage of the deportable alien
who wishes merely to remain in the United States” – the BIA has “broad discretion
to . . . deny such motions,” INS v. Doherty, 502 U.S. 314, 323 (1992) (internal
quotation marks omitted). “An abuse of discretion may be found where the BIA’s
decision provides no rational explanation, inexplicably departs from established
policies, is devoid of any reasoning, or contains only summary or conclusory
statements; that is . . . [,] the Board has acted in an arbitrary or capricious manner.”
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Jian Hua Wang v. BIA, 508 F.3d 710, 714 (2d Cir. 2007). We review the BIA’s
underlying factual findings (including findings as to whether an alien has
demonstrated a “material” change in country conditions) for substantial evidence,
Jian Hui Shao, 546 F.3d at 169, treating them as “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary,” see 8 U.S.C.
§ 1252(b)(4)(B). While we review due-process challenges to a BIA decision de
novo, Ali v. Mukasey, 525 F.3d 171, 173 (2d Cir. 2008), a petitioner cannot obtain de
novo review of what is “in effect” an argument that the BIA “simply reached the
wrong outcome” by “cloaking” it in the “language of ‘due process.’” Saloum v.
USCIS, 437 F.3d 238, 243–44 (2d Cir. 2006) (citations omitted). We assume the
parties’ familiarity with the underlying facts and procedural history.
It is undisputed that Mitaj’s 2020 motion to reopen was facially untimely
because he filed it more than a full year after he was ordered removed in 2018.
See 8 U.S.C. § 1229a(c)(7)(C)(i) (“[A] motion to reopen shall be filed within [ninety]
days of the date of entry of a final administrative order of removal.”); 8 C.F.R.
§ 1003.2(c)(2). The normal ninety-day time limit does not apply, however, if
reopening is sought to apply for asylum or withholding of removal, and the
motion “is based on . . . evidence” that is “material” to establishing “changed
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country conditions arising in the country of nationality or the country [of]
removal” and “was not available . . . at the previous proceeding.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see 8 C.F.R. § 1003.2(c)(3).
Here, the BIA rejected Mitaj’s argument that Dr. Fischer’s report constituted
new and material evidence sufficient to trigger this statutory exception and excuse
the otherwise-untimely filing of his motion. Specifically, the BIA found that the
report – whether considered “alone” or “in sum” with the rest of “the [record]
evidence” – failed to establish a material change in conditions in Albania since
Mitaj’s original 2017 hearing before the Immigration Judge (the “IJ”). Certified
Admin. Record at 3–4. Mitaj now urges that the BIA abused its direction in so
finding. We disagree.
“When reviewing whether . . . evidence established changed country
conditions, the BIA must compare the evidence of country conditions submitted
with the motion to those that existed at the time of the merits hearing below.”
Tanusantoso v. Barr, 962 F.3d 694, 698 (2d Cir. 2020) (internal quotation marks
omitted). The evidence Mitaj had presented to the IJ in 2017 described Albania’s
then-ongoing problems with government corruption, crime, and political turmoil
between parties of different religious affiliations. The evidence he presented to
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the BIA in 2020 (i.e., Dr. Fischer’s report) described Albania’s still-“ongoing”
problems, Certified Admin. Record at 61–62, with the very same issues. Indeed,
Dr. Fischer repeatedly emphasized that the cultural, political, and religious
dynamics described in his report are “continuing” problems in Albania that
variously “date back” to “at least the Middle Ages,” the “fifteenth century,” the
“early 1990s,” the “flawed elections of 2009 and 2011,” or other events long
predating Mitaj’s 2017 removal proceedings before the IJ. Id. at 51–57, 59–66, 69–
73, 79. Accordingly, the BIA’s finding that Mitaj failed to demonstrate a material
change in conditions in Albania was supported by substantial evidence, see Jian
Hui Shao, 546 F.3d at 168–69; 8 U.S.C. § 1252(b)(4)(B), and was soundly reasoned
within the applicable legal framework, see Tanusantoso, 962 F.3d at 698. The BIA
therefore did not abuse its discretion in denying his motion as untimely. See Jian
Hua Wang, 508 F.3d at 714; 8 U.S.C. § 1229a(c)(7)(C). 1
We likewise reject Mitaj’s contention that “the BIA violated [his] right to due
process when it failed to consider all of the evidence of record.” Mitaj Br. at 16
1 Because the BIA’s denial of Mitaj’s motion as untimely is dispositive, see 8 U.S.C.
§ 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3), we need not reach the BIA’s alternative basis for
denying his motion (i.e., that he failed to establish his prima facie eligibility for relief), see INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule[,] courts and agencies are not required to
make findings on issues the decision of which is unnecessary to the results they reach.”).
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(capitalization standardized). “To establish a violation of due process,” Mitaj
“must show that []he was denied a full and fair opportunity to present h[is] claims
or that the . . . BIA otherwise deprived h[im] of fundamental fairness.” Burger v.
Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal quotation marks omitted).
Mitaj’s repetitive and conclusory assertions that the BIA “clearly ignored” Dr.
Fischer’s report, Mitaj Br. at 19, are belied by the record, which shows that the BIA
carefully analyzed Dr. Fischer’s report, and by Mitaj’s own petition to this Court,
in which he begrudgingly concedes that the BIA did discuss “facts and aspects of
the report in its decision.” Id. 2
2 Mitaj’s remaining arguments in support of his due-process claim amount to nothing more than
“effort[s] to dress up a poorly disguised attack on the merits of” the BIA’s changed-country-
conditions finding “by couching” that attack in “talismanic invocation[s] of the language of due
process.” Saloum, 437 F.3d at 243–44 (internal quotation marks omitted). For instance, whereas
Mitaj now asserts that the BIA “failed to consider” what he characterizes as “the fact that
conditions in Albania have deteriorated significantly,” Mitaj Br. at 19, the BIA did consider Mitaj’s
arguments to that effect; it simply rejected them. Because this assertion is “arguing in effect . . .
that [the BIA] . . . simply reached the wrong outcome,” it is not cognizable as a due-process claim.
Saloum, 437 F.3d at 244 (internal quotation marks omitted). The same is true of Mitaj’s assertion
that the BIA gave inadequate weight (or dedicated insufficient space in its written decision) to
certain specific “fact[s]” alleged in Dr. Fischer’s report, Mitaj Br. at 19, which is similarly “arguing
in effect . . . that the [BIA] incorrectly weighed the evidence [or] failed to explicitly consider certain
evidence,” Saloum, 437 F.3d at 244 (internal quotation marks and alterations omitted). Despite
being nominally “recast as alleged due process violations,” neither of these assertions is distinct
from Mitaj’s “[t]raditional abuse[-]of[-]discretion challenge[],” id. (citation omitted) – which we
have already rejected.
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Meanwhile, nowhere in his petition for review does Mitaj meaningfully
“contend that he was prevented from presenting his case before . . . the BIA, or
that he was denied a full and fair hearing before an impartial adjudicator, or
otherwise denied a basic due process right.” Saloum, 437 F.3d at 244 (citation and
alterations omitted). On the contrary, the record clearly indicates that the BIA
considered his motion to reopen and all of his accompanying evidence. His due-
process claim therefore fails.
We have considered all of Mitaj’s remaining arguments and find them to be
without merit. Accordingly, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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