NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0092n.06
FILED
No. 10-4315
Jan 26, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
MARASH KALAJ; LUCE KALAJ, )
)
Petitioners, )
) ON PETITION FOR REVIEW
v. ) FROM A FINAL ORDER OF THE
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
Before: MARTIN, SUTTON, and BALDOCK*, Circuit Judges.
PER CURIAM. Marash and Luce Kalaj, husband and wife, petition for review of an order
by the Board of Immigration Appeals (Board) denying their motion to reopen their removal
proceedings.
The Kalajs were born in Albania and came to the United States in 2000. They overstayed
their visitor’s visas and subsequently applied for asylum, withholding of removal, and relief under
the Convention Against Torture. Their applications were finally denied in 2005. They then moved
to reopen their case, citing ineffective assistance of counsel and a change in the country’s conditions.
That motion was denied and we affirmed. Kalaj v. Mukasey, 276 F. App’x 465, 468 (6th Cir. 2008).
The Kalajs proceeded to file yet another motion to reopen their proceedings, this time on the
ground that they were eligible for adjustment of status based on their naturalized son’s approved visa
*
The Honorable Bobby Baldock, Circuit Judge of the United States Court of Appeals for the
Tenth Circuit, sitting by designation.
No. 10-4315
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petitions. The memorandum in support of this motion also noted that the Kalajs were suffering from
hypertension, gastrititis, hyperlipidemia, degenerative joint disease, and an eye infection. They again
argued that conditions in Albania had changed for the worse. The Board denied the motion, holding
that it was untimely and number-barred, and that no exceptional circumstances existed that would
warrant the Board’s sua sponte reopening of the case.
In their timely appeal, the Kalajs argue that they demonstrated a change in Albania’s
conditions sufficient to excuse the untimely and successive nature of their motion. Alternatively,
they argue that the Board should have reopened the case sua sponte because they are eligible for
adjustment of status and have health problems.
The denial of a motion to reopen is reviewed for an abuse of discretion. Denko v. INS, 351
F.3d 717, 723 (6th Cir. 2003). An abuse of discretion will be found where the Board’s decision is
without rational explanation, inexplicably departs from established policies, or is based on invidious
discrimination. Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006).
The Kalajs are limited to one motion to reopen and the motion must be filed within ninety
days of the final order of removal. See 8 U.S.C. § 1229a(c)(7). An exception to this limit is made
where a petitioner applies for asylum or withholding of removal based on changed conditions in the
country of removal. 8 C.F.R. § 1003.2(c)(3)(ii). The Kalajs argue on appeal that their motion
satisfies this exception. However, their motion, while mentioning a change in conditions in the
memorandum, was based on their eligibility for an adjustment of status, which is not an authorized
exception. Moreover, even if this issue had been properly raised below, the Kalajs failed to
demonstrate that conditions in Albania have changed for the worse since their original application
for asylum or their first motion to reopen. See Pllumi v. Attorney Gen. of the U.S., 642 F.3d 155, 161
(3d Cir. 2011).
No. 10-4315
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Alternatively, the Kalajs argue that the Board could have sua sponte reopened their case due
to their eligibility for adjustment of status and their health conditions. However, we lack jurisdiction
to review the denial of a motion to reopen sua sponte. Gor v. Holder, 607 F.3d 180, 187-88 (6th Cir.
2010), cert. denied, 131 S. Ct. 3058 (2011).
Accordingly, the petition for review is denied.