13-1370 (L)
Dedi v. Holder
BIA
A078 519 705
A098 358 211
A098 358 213
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 27th day of August, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11 _____________________________________
12
13 DAVID DEDI, AKA ANTONIO DI MEGLIO,
14 ALBINE DEDI, XHULIO DEDI,
15 Petitioners,
16 13-1370 (L),
17 v. 13-1373 (Con)
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Charles Christophe, New York, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Shelley R. Goad, Assistant
29 Director; Russell J.E. Verby, Senior
1 Litigation Counsel, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of these petitions for review of
6 decisions of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petitions for
8 review are DENIED.
9 David, Albine, and Xhulio Dedi, natives and citizens of
10 Albania, seek review of two March 22, 2013, decisions of the
11 BIA denying their motion to reopen. In re David Dedi, No.
12 A078 519 705 (B.I.A. Mar. 22, 2013); In re Albine Dedi,
13 Xhulio Dedi, Nos. A098 358 211, A098 358 213 (B.I.A. Mar.
14 22, 2013). We assume the parties’ familiarity with the
15 underlying facts and procedural history of this case.
16 We review the BIA’s denial of a motion to reopen for
17 abuse of discretion, mindful of the Supreme Court’s
18 admonition that such motions are “disfavored.” Ali v.
19 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
20 Doherty, 502 U.S. 314, 322-23 (1992)). When the BIA
21 considers relevant evidence of country conditions in
22 evaluating a motion to reopen, we review the BIA’s factual
23 findings under the substantial evidence standard. See Jian
24 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
2
1 An alien may file one motion to reopen within 90 days
2 of the agency’s final administrative decision. 8 U.S.C.
3 § 1229a(c)(7)(A), (C)(i). It is undisputed that the Dedis’
4 motion was untimely and number-barred because they filed it
5 more than five years after the agency’s final orders of
6 removal, and they previously had moved to reopen
7 proceedings. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i).
8 However, there are no time and numerical limitations for
9 filing a motion to reopen if it “is based on changed country
10 conditions arising in the country of nationality or the
11 country to which removal has been ordered, if such evidence
12 is material and was not available and would not have been
13 discovered or presented at the previous proceeding.”
14 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
15 § 1003.2(c)(3)(ii).
16 The BIA did not err in concluding that the Dedis failed
17 to satisfy the changed country conditions exception. Their
18 assertion that former communists in Albania had harmed their
19 family member and would harm them on account of their
20 membership in the Democratic Party is essentially the same
21 claim that they asserted in their initial asylum
22 applications and hearings. See 8 U.S.C.
3
1 § 1229a(c)(7)(C)(ii); see also Matter of S-Y-G-, 24 I. & N.
2 Dec. 247, 253 (BIA 2007) (“In determining whether evidence
3 accompanying a motion to reopen demonstrates a material
4 change in country conditions that would justify reopening,
5 [the BIA] compare[s] the evidence of country conditions
6 submitted with the motion to those that existed at the time
7 of the merits hearing below.”). Moreover, as the BIA noted,
8 the 2011 U.S. Department of State Country Report on Human
9 Rights Practices in Albania submitted with their motion did
10 not demonstrate a material change in country conditions as
11 it did not indicate that anyone targets or harms Democratic
12 Party members. Finally, the BIA did not err in rejecting
13 the motion as to David Dedi because he did not rebut the
14 agency’s underlying adverse credibility determination. See
15 Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (concluding
16 that the BIA did not err in finding petitioner’s evidence in
17 support of reopening immaterial because it did not rebut the
18 agency’s underlying adverse credibility determination).
19 Accordingly, the BIA reasonably concluded that the
20 Dedis failed to demonstrate material changed country
21 conditions, and it did not abuse its discretion in denying
22
4
1 their motion to reopen as untimely and number-barred. See
2 8 U.S.C. § 1229a(c)(7)(A), (C).
3
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
5