12-1882
Kadria v. Holder
BIA
A078 280 103
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 22nd day of July, two thousand thirteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 LAHIM KADRIA,
14 Petitioner,
15
16 v. 12-1882
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael P. DiRaimondo, Marialaina L.
24 Masi, Stacy A. Huber, DiRaimondo &
25 Masi, LLP, Melville, N.Y.
26
27 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
28 Assistant Attorney General; Terri J.
1 Scadron, Assistant Director;
2 Genevieve Holm, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Lahim Kadria, a native and citizen of
12 Albania, seeks review of the May 3, 2012, order of the BIA
13 denying his second motion to reopen his removal proceedings.
14 In re Lahim Kadria, No. A078 280 103 (B.I.A. May 3, 2012).
15 We assume the parties’ familiarity with the underlying facts
16 and procedural history in this case. We review the BIA’s
17 denial of Kadria’s motion to reopen for abuse of discretion.
18 See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).
19 The BIA did not abuse its discretion in denying
20 Kadria’s 2011 motion to reopen as untimely and number-
21 barred, as he filed it more than eight years after the BIA’s
22 order upholding an immigration judge’s underlying merits
23 decision, and had previously filed a motion to reopen.
24 8 U.S.C. § 1229a(c)(7)(A), (C)(i) (providing that only one
25 motion to reopen may be filed within 90 days of the final
2
1 administrative decision); 8 C.F.R. § 1003.2(c)(2) (same).
2 Although these time and number restrictions do not apply to
3 a motion to reopen seeking to apply for asylum “based on
4 changed circumstances arising in the country of nationality
5 or in the country to which deportation has been ordered, if
6 such evidence is material and was not available and could
7 not have been discovered or presented at the previous
8 hearing,” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
9 § 1229a(c)(7)(C)(ii), substantial evidence supports the
10 BIA’s finding that Kadria did not demonstrate a change in
11 conditions in Albania.
12 The evidence submitted indicated a continuation, from
13 the time of Kadria’s initial application to the time of his
14 motion to reopen, of sporadic political violence and
15 divisiveness between the Socialist Party and the Democratic
16 Party. It also reflected the inclusion of the Democratic
17 Party in the coalition government, a decrease in the amount
18 of politically motivated detentions, and a marked progress
19 towards greater democratization. Because the evidence did
20 not document any current harm to Democratic Party
21 supporters, let alone an increase in such harm since the
22 time of Kadria’s hearing in 2001, the BIA reasonably
3
1 concluded that Kadria had not demonstrated a material change
2 in conditions. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
3 169 (2d Cir. 2008) (holding that when the agency explicitly
4 considers relevant evidence of country conditions in
5 evaluating a motion to reopen, this Court reviews the
6 agency’s factual findings under the substantial evidence
7 standard); see also Matter of S-Y-G-, 24 I. & N. Dec. 247,
8 253 (BIA 2007) (“In determining whether evidence
9 accompanying a motion to reopen demonstrates a material
10 change in country conditions that would justify reopening,
11 [the BIA] compare[s] the evidence of country conditions
12 submitted with the motion to those that existed at the time
13 of the merits hearing below.”). Moreover, because there is
14 no indication that the BIA failed to consider any evidence,
15 Kadria failed to demonstrate a due process violation. See
16 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338
17 n.17 (2d Cir. 2006) (“[W]e presume that an IJ has taken into
18 account all of the evidence before him, unless the record
19 compellingly suggests otherwise.”); Li Hua Lin v. U.S. Dep’t
20 of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006) (noting due
21 process requires that an applicant receive “a full and fair
22 opportunity to present [his] claims” (quoting Xiao Ji Chen,
23 434 F.3d at 155)).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
5