Shqutaj v. Holder , 556 F. App'x 15 ( 2014 )

12-3541
Shqutaj v. Holder
BIA
A076 108 855
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 21st day of February, two thousand fourteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 KATRINE SHQUTAJ,
14 Petitioner,
15
16 v. 12-3541
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Katrine Shqutaj, Sterling Heights,
24 Michigan (pro se).
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Paul Fiorino,
28 Senior Litigation Counsel; Matthew
29 B. George, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Katrine Shqutaj, a native and citizen of
6 Albania, seeks review of an August 15, 2012, order of the
7 BIA, denying her motion to reopen her removal proceedings.
8 In re Katrine Shqutaj, No. A076 108 855 (B.I.A. Aug. 15,
9 2012). We assume the parties’ familiarity with the
10 underlying facts and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). An alien seeking to reopen
14 proceedings is required to file a motion to reopen no later
15 than 90 days after the date on which the final
16 administrative decision was rendered, and may only file one
17 such motion. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8
18 C.F.R. § 1003.2(c)(2). There is no dispute that Shqutaj’s
19 2012 motion to reopen was untimely and number-barred, as the
20 BIA issued a final order of removal in her case in 2002 and
21 she previously filed a motion to reopen in 2003. Shqutaj
22 contends, however, that she established changed
23 circumstances excusing the time and number bars, including
2
1 her daughter’s grant of asylum in 2011 and worsening
2 conditions in Albania for Catholics and members of her
3 political party. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8
4 C.F.R. § 1003.2(c)(3)(ii).
5 The BIA did not abuse its discretion in finding that
6 Shqutaj’s new evidence did not materially affect her
7 eligibility for asylum because it did not rebut the adverse
8 credibility determination the immigration judge (“IJ”) made
9 in her asylum hearing in 2002. See Kaur v. BIA, 413 F.3d
10 232, 234 (2d Cir. 2005) (per curiam); see also Qin Wen Zheng
11 v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007). We have held
12 that a prior adverse credibility determination does not
13 necessarily preclude a finding of a well-founded fear of
14 persecution when the new claim rests on a factual predicate
15 “independent of the testimony that the IJ found not to be
16 credible.” See Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.
17 2006). Shqutaj’s 2012 motion to reopen, however, primarily
18 argued that she faced persecution on account of her
19 anti-communist political views, which were the basis for her
20 original asylum claim, and emphasized that her daughter had
21 been granted asylum on the same basis as Shqutaj’s prior
22 application, without addressing how her new evidence
3
1 rebutted the IJ’s credibility finding regarding this claim.
2 While Shqutaj argues that the IJ’s credibility finding was
3 in error, this issue is not before us, as the BIA affirmed
4 the IJ’s decision in 2002 and Shqutaj did not petition this
5 court for review of that decision. See id. at 153 (“[A]
6 motion to reopen does not provide a collateral route by
7 which the alien may challenge the validity of the original
8 credibility determination.”).
9 To the extent that Shqutaj’s motion raised a new claim
10 based on her Catholic religion, the BIA did not err in
11 finding that Shqutaj did not submit sufficient evidence in
12 support of this claim. While her motion asserted that she
13 faced persecution as a Catholic, Shqutaj did not submit an
14 affidavit or any documentary evidence establishing that she
15 is Catholic and that she subjectively fears persecution in
16 Albania on this basis. See INS v. Phinpathya, 464 U.S. 183,
17 188 n.6 (1984) (counsel’s “unsupported assertions” in
18 briefing do not constitute evidence); Ramsameachire v.
19 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004) (to establish a
20 well-founded fear of future persecution, an applicant must
21 present credible evidence that she “subjectively fears
22 persecution and establish that [her] fear is objectively
4
1 reasonable.” (citation omitted)). We therefore decline to
2 reach the agency’s finding that Shqutaj’s evidence did not
3 show a material change in the treatment of Catholics in
4 Albania, as she failed to establish, as a threshold matter,
5 that she had a subjective fear of future persecution on
6 account of her religion. See Ramsameachire, 357 at 178; INS
7 v. Bagamasbad, 429 U.S. 24, 25 (1976).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DENIED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2) and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
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