12-4615
Deshati v. Holder
BIA
A098 772 323
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 9th day of May, two thousand fourteen.
5
6
7 PRESENT:
8 RALPH K. WINTER,
9 GUIDO CALABRESI,
10 ROSEMARY S. POOLER,
11 Circuit Judges.
12 _____________________________________
13
14 TAULAND DESHATI,
15 Petitioner,
16
17 v. 12-4615
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Michael P. DiRaimondo, DiRaimondo &
25 Masi, LLP, Melville, New York.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; David V. Bernal,
29 Assistant Director; Dara S. Smith,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
8 review is DENIED.
9 Tauland Deshati, a native and citizen of Albania, seeks
10 review of an October 25, 2012, decision of the BIA denying
11 his motion to reopen. In re Tauland Deshati, No. A098 772
12 323 (B.I.A. Oct. 25, 2012). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 of this case.
15 We review the BIA’s denial of a motion to reopen for
16 abuse of discretion, mindful of the Supreme Court’s
17 admonition that such motions are “disfavored.” Ali v.
18 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v.
19 Doherty, 502 U.S. 314, 322-23 (1992)). When the BIA
20 considers relevant evidence of country conditions in
21 evaluating a motion to reopen, we review the BIA’s factual
22 findings under the substantial evidence standard. See Jian
23 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
24
2
1 An alien may file a motion to reopen within 90 days of
2 the agency’s final administrative decision. 8 U.S.C.
3 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). Although
4 Deshati’s motion was indisputably untimely because it was
5 filed more than three years after the agency’s final order
6 of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i), there is no
7 time limitation for filing a motion to reopen if it is
8 “based on changed country conditions arising in the country
9 of nationality or the country to which removal has been
10 ordered, if such evidence is material and was not available
11 and would not have been discovered or presented at the
12 previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
13 also 8 C.F.R. § 1003.2(c)(3)(ii). We find no error in the
14 BIA’s determination that Deshati failed to demonstrate
15 materially changed country conditions excusing the untimely
16 filing of his motion to reopen.
17 As an initial matter, because the BIA explicitly
18 considered the evidence submitted with Deshati’s motion, and
19 compared it with the evidence in the record at the time of
20 his hearing, the record does not compellingly suggest that
21 the BIA failed to adequately consider the full record and
22 Deshati’s due process claim is without merit. See Li Hua
3
1 Lin v. U.S. Dept. of Justice, 453 F.3d 99, 104-05 (2d Cir.
2 2006); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
3 336-38 (2d Cir. 2006); see also Matter of S-Y-G-, 24 I. & N.
4 Dec. 247, 253 (B.I.A. 2007) (“In determining whether
5 evidence accompanying a motion to reopen demonstrates a
6 material change in country conditions that would justify
7 reopening, [the BIA] compare[s] the evidence of country
8 conditions submitted with the motion to those that existed
9 at the time of the merits hearing below.”). Furthermore,
10 the BIA reasonably concluded that the country conditions
11 evidence Deshati submitted failed to demonstrate materially
12 changed country conditions because that evidence
13 demonstrated continued political violence in Albania, and
14 did not indicate that conditions had materially worsened
15 since Deshati’s 2007 hearing. See 8 U.S.C.
16 § 1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546 F.3d at
17 171-72; Matter of S-Y-G-, 24 I. & N. Dec. at 253.
18 Accordingly, the BIA did not abuse its discretion in denying
19 Deshati’s motion to reopen as untimely. See 8 U.S.C.
20 § 1229a(c)(7)(C).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
23 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
5