10-117-ag
Markovic v. Holder
BIA
A073 617 999
A073 618 000
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 26th day of October, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
RALPH K. WINTER,
Circuit Judges.
_____________________________________
HAMID MARKOVIC, NAFIJE DURAKOVIC,
Petitioners,
v. 10-117-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Gregory Marotta, Vernon, NJ.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Emily Anne Radford, Assistant
Director; Christopher P. McGreal,
Trial Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioners, natives and citizens of Montenegro, seek
review of a December 23, 2009, order of the BIA denying their
motion to reopen. In re Markovic, Nos. A095 617 999/618 000
(B.I.A. Dec. 23, 2009). We assume the parties’ familiarity
with the underlying facts and procedural history of this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion, mindful of the Supreme Court’s admonition
that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d
515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314,
322-23 (1992)).
It is beyond dispute that Petitioners’ motion to reopen
was untimely, as it was filed almost seven years after the
BIA’s dismissal of Petitioners’ appeal of their removal order.
See 8 C.F.R. § 1003.2(c)(2). Although Petitioners contend
that the time limitation does not apply to their motion to
reopen because it was “based on changed circumstances arising
-2-
in the country of nationality” and the evidence they submitted
“is material and was not available and could not have been
discovered or presented at the previous hearing,” 8 C.F.R. §
1003.2(c)(3)(ii), their arguments are unavailing.
As an initial matter, as the BIA explicitly referenced
the materials submitted with the motion, there is no
indication that the BIA ignored any material evidence
Petitioners submitted. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 169 (2d Cir. 2008) (recognizing that the Court has
rejected the notion that the agency must “expressly parse or
refute on the record each individual argument or piece of
evidence offered by the petitioner”); see also Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)
(presuming that the agency “has taken into account all of the
evidence before [it], unless the record compellingly suggests
otherwise”).
Moreover, contrary to Petitioners’ argument, the record
supports the BIA’s determination that Petitioners failed to
establish that conditions in Montenegro had changed
fundamentally since their merits hearing, as required to
warrant reopening. See Xiao Ji Chen, 471 F.3d at 342 (holding
that the weight afforded to the applicant’s evidence in
-3-
immigration proceedings lies largely within the discretion of
the agency); Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
Cir. 2008) (holding that the BIA’s evaluation of country
conditions evidence submitted with a motion to reopen is
reviewed under the substantial evidence standard).
Petitioners submitted a number of exhibits pertaining to
fourteen men of Albanian ethnicity who were arrested in
Montenegro on charges of terrorism and were allegedly
mistreated. However, that particular incident does not
establish that ethnic Albanians, as a group, are subject to
persecution in Montenegro. See Lecaj v. Holder, No. 09-0768,
2010 WL 3001332, at *5 (2d Cir. Aug. 3, 2010). Other
materials submitted by Petitioners were outdated, irrelevant
to their claims, or uncorroborated. The agency did not abuse
its discretion in choosing not to credit these exhibits. Xiao
Ji Chen, 471 F.3d at 342.
Because the BIA reasonably found that Petitioners failed
to establish changed country conditions sufficient to warrant
reopening, its denial of Petitioners’ motion to reopen was not
an abuse of discretion. Because the BIA did not abuse its
discretion by denying the motion as untimely, we do not reach
Petitioners’ argument that they established their prima facie
-4-
eligibility for relief.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
-5-