Ujkaj v. Holder , 563 F. App'x 86 ( 2014 )

12-1553
Ujkaj v. Holder
BIA
A079 327 477
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 24th day of April, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 GUIDO CALABRESI,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 ILIR UJKAJ,
14 Petitioner,
15
16 v. 12-1553
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Ilir Ujkaj, Pro Se, Farmington
24 Hills, Michigan.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Jennifer L.
28 Lightbody, Senior Litigation
29 Counsel; Aimee J. Carmichael, Trial
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, 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 Ilir Ujkaj, a native and citizen of Albania,
6 seeks review of the March 21, 2012, order of the BIA denying
7 his motion to reopen. In re Ilir Ujkaj, No. A079 327 477
8 (B.I.A. Mar. 21, 2012). We assume the parties’ familiarity
9 with the underlying facts and procedural history in this
10 case. We review the BIA’s denial of Ujkaj’s motion for
11 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
12 (2d Cir. 2006). Because Ujkaj’s petition is timely only
13 with respect to the denial of reopening, we lack
14 jurisdiction to consider his challenge to the underlying
15 adverse credibility determination. See 8 U.S.C.
16 § 1252(b)(1); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265
17 F.3d 83, 89 (2d Cir. 2001).
18 The BIA did not abuse its discretion in denying Ujkaj’s
19 2011 motion to reopen as untimely, because he filed it more
20 than 90 days after the BIA’s 2005 final order of removal. 8
21 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
22 Although the time limitation does not apply if a motion is
2
1 based on material, previously unavailable evidence of
2 “changed circumstances arising in the country of
3 nationality,” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
4 § 1229a(c)(7)(C)(ii), substantial evidence supports the
5 BIA’s finding that Ujkaj did not demonstrate a change in
6 conditions in Albania.
7 The expert opinion Ujkaj submitted indicated a
8 continuation, from the time of Ujkaj’s merits hearing to the
9 time of his motion to reopen, of sporadic political violence
10 and divisiveness between the Socialist and Democratic
11 Parties in Albania. It also reflected the rise of the
12 Democratic Party to power, which we have previously
13 considered to be evidence of improved conditions. See
14 Hoxhallari v. Gonzales, 468 F.3d 179, 185-86 (2d Cir. 2006).
15 Both Ujkaj’s uncle and his expert witness indicated that
16 officials under Democratic Party rule, like their Socialist
17 Party predecessors, refused the return of confiscated land
18 to landowners, like Ujkaj. The failure to return the land,
19 therefore, reflects no change in conditions.
20 The BIA did not err in its treatment of Ujkaj’s
21 evidence. Contrary to Ujkaj’s assertion, the BIA did not
22 rely on U.S. State Department reports to discredit the
3
1 expert; it simply refused to credit the expert’s unsupported
2 assertion that such reports are inaccurate. Ujkaj also
3 submitted an asylum statement from his sister, but the
4 events she described occurred prior to Ujkaj’s 2004 hearing,
5 and necessarily could not reflect any change thereafter.
6 Because the evidence did not show any increase in harm to
7 Democratic Party members or landowners attempting to reclaim
8 confiscated lands, the BIA reasonably concluded that Ujkaj
9 had not demonstrated a material change in conditions. See
10 Hoxhallari, 468 F.3d at 185-86.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
4