12-1688
Lelcaj v. Holder
BIA
A078 726 552
A078 726 553
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 3rd day of October, two thousand thirteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 GJELOSH LELCAJ, ANA LELCAJ,
14 Petitioners,
15
16 v. 12-1688
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: Michael P. DiRaimondo, DiRaimondo &
24 Masi, LLP, Melville, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Ernesto H. Molina,
28 Jr., Assistant Director; Dana M.
29 Camilleri, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Petitioners Gjelosh and Ana Lelcaj, husband and wife
7 and natives and citizens of Albania, seek review of a March
8 29, 2012, decision of the BIA denying their motion to reopen
9 their removal proceedings. In re Gjelosh Lelcaj, Ana
10 Lelcaj, Nos. A078 726 552/553 (B.I.A. Mar. 25, 2012). We
11 assume the parties’ familiarity with the underlying facts
12 and procedural history in this case.
13 We review the BIA’s denial of a motion to reopen for
14 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
15 (2d Cir. 2006) (per curiam). An alien seeking to reopen
16 proceedings is required to file a motion to reopen no later
17 than 90 days after the date on which the final
18 administrative decision was rendered and is permitted to
19 file only one such motion. See 8 U.S.C. § 1229a(c)(7)(A),
20 (C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that
21 Petitioners’ third motion to reopen, filed in 2011, was
22 untimely and number-barred because their orders of removal
23 became final in 2002. See 8 U.S.C. § 1101(a)(47)(B)(i).
2
1 Petitioners contend, however, that the birth of their
2 U.S.-citizen daughter and an increase in the kidnapping of
3 young women for forced prostitution in Albania constitute
4 materially changed country conditions excusing their motion
5 from the applicable time and numerical limitations. See
6 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).
7 Initially, we note that Petitioners do not challenge
8 the BIA’s finding that their motion did not comply with the
9 governing regulatory requirements, and they have therefore
10 waived review of that dispositive determination. See
11 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7
12 (2d Cir. 2005) (providing that issues not argued in briefs
13 are deemed waived). Indeed, Petitioners did not support
14 their motion to reopen with an updated application for
15 asylum, withholding of removal, and relief under the
16 Convention Against Torture, despite 8 C.F.R.
17 § 1003.2(c)(1)’s requirement that a “motion to reopen
18 proceedings for the purpose of submitting an application for
19 relief must be accompanied by the appropriate application
20 for relief and all supporting documentation.” (emphasis
21 added). Because Petitioners have declined to challenge this
22 dispositive finding, we do not consider their remaining
3
1 arguments, which relate to the BIA’s treatment of their
2 country conditions evidence. See INS v. Bagamasbad, 429
3 U.S. 24, 25 (1976) (“As a general rule courts and agencies
4 are not required to make findings on issues the decision of
5 which is unnecessary to the results they reach.”). We do,
6 however, note that Petitioners previously moved for
7 reopening on the basis of the purported increase in
8 kidnappings of young women for forced prostitution in
9 Albania, which the BIA found to reflect a continuation
10 rather than a material change in country conditions——a
11 finding that we previously affirmed on appeal.
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2) and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
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