09-1732-ag
Pllumbaj v. Holder
BIA
A095 150 229
A095 150 230
A095 150 231
A095 150 232
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 7 th day of May, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 ______________________________________
12
13 FRAN ZEF PLLUMBAJ, ANITA PLLUMBAJ,
14 ALMARINA PLLUMBAJ, ALDO PLLUMBAJ,
15 Petitioners,
16 09-1732-ag
17 v. NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL, ET. AL.,
21 Respondents.
22 ______________________________________
23
24 FOR PETITIONERS: Andrew P. Johnson; Lawrence Spivak,
25 New York, New York.
26
27 FOR RESPONDENTS: Tony West, Assistant Attorney
28 General; Michelle Gorden Latour,
29 Assistant Director; Tracie N. Jones,
1 Trial Attorney, Office of
2 Immigration Litigation, Civil
3 Division, United States Department
4 of Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 The Petitioners, Fran Zef Pllumbaj, Anita Pllumbaj,
11 Almarina Pllumbaj, and Aldo Pllumbaj, natives and citizens
12 of Albania, seek review of an April 17, 2009, order of the
13 BIA denying their motion to reopen their removal
14 proceedings. In re Pllumbaj, No. A 095 150 229/230/231/232
15 (B.I.A. Apr. 17, 2009). We assume the parties’ familiarity
16 with the underlying facts and procedural history of the
17 case.
18 We review the BIA’s denial of a motion to reopen for
19 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
20 (2d Cir. 2006). When the BIA considers relevant evidence of
21 country conditions in evaluating a motion to reopen, we
22 review the BIA’s factual findings under the substantial
23 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
24 138, 169 (2d Cir. 2008).
25 An alien may only file one motion to reopen and must do
2
1 so within 90 days of the final administrative decision.
2 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). It is
3 indisputable that the Petitioners’ motion to reopen was
4 untimely and number-barred. These limitations do not apply,
5 however, if the alien establishes materially changed
6 circumstances arising in the country of nationality.
7 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
8 In denying the Petitioners’ motion to reopen, the BIA
9 concluded that, even assuming they demonstrated changed
10 country conditions, reopening was unwarranted because they
11 failed to establish “that any of the harm [they] experienced
12 was on account of a protected ground, as opposed to criminal
13 activity.” In other words, the BIA found that the
14 Petitioners had failed to establish their prima facie
15 eligibility for relief. See INS v. Abudu, 485 U.S. 94, 104-
16 05 (1988). We find the Petitioners’ assertion that a threat
17 issued against Fran’s brother by the police in an unrelated
18 matter five years after their mother’s death was
19 insufficient to compel the conclusion that she was killed
20 for political reasons. See Siewe v. Gonzales, 480 F.3d 160,
21 167 (2d Cir. 2007) (“Where there are two permissible views
22 of the evidence, the factfinder’s choice between them cannot
3
1 be clearly erroneous.”). Evidence of Almarina’s rape,
2 though distressing, similarly does not suggest error in the
3 BIA’s decision.
4 The Petitioners further assert that they established
5 the requisite nexus because they demonstrated that they were
6 persecuted on account of their membership in a particular
7 social group comprised of “[family members] of a soldier who
8 opposed official abuse of civilians.” However, the BIA was
9 under no obligation to consider this newly-minted legal
10 theory in adjudicating an untimely motion to reopen. See
11 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Matter of O-S-G-, 24
12 I. & N. Dec. 56, 58 (BIA 2006) (“A motion to reconsider
13 based on a legal argument that could have been raised
14 earlier in the proceedings will be denied.”).
15 Although the Petitioners alternatively challenge the
16 Immigration Judge’s initial determination that they failed
17 to establish a nexus between the incidents they described
18 and a protected ground, we are “precluded from passing on
19 the merits of the underlying [removal] proceedings” in
20 considering the BIA’s denial of the Petitioners’ motion to
21 reopen. Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,
22 90 (2d Cir. 2001).
4
1 Finally, although the Petitioners argue that the BIA
2 erred by failing to address whether they are eligible for
3 humanitarian asylum, such relief would only have been
4 available had the the BIA reopened their proceedings. See
5 8 C.F.R. §§ 1003.2(c)(1); 1208.13(b)(1)(iii).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
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