09-1921-ag
Perasevic v. Holder
BIA
A 079 328 563
A 079 328 564
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 19 th day of February, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROBERT A. KATZMANN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 ______________________________________
13
14 SMAIL PERASEVIC AND NEBIJA PERASEVIC,
15 Petitioners,
16 09-1921-ag
17 v. NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONERS: Charles Christophe, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General, Civil Division; Luis E.
29 Perez, Senior Litigation Counsel;
30 Joseph D. Hardy, Trial Attorney,
31 Office of Immigration Litigation,
32 Civil Division, United States
33 Department of Justice, Washington,
34 D.C.
35
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioners, natives and citizens of the former
6 Yugoslavia, seek review of an April 13, 2009, order of the
7 BIA denying their third motion to reopen their removal
8 proceedings. In re Smail Perasevic and Nebija Perasevic,
9 Nos. A 079 328 563, A 079 328 564 (B.I.A. Apr. 13, 2009).
10 We assume the parties’ familiarity with the underlying facts
11 and procedural history of the case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
14 Cir. 2006). An alien may only file one motion to reopen and
15 must do so within 90 days of the agency’s final
16 administrative decision. 8 C.F.R. § 1003.2(c)(2). However,
17 the time and number limitations do not apply to a motion to
18 reopen that is “based on changed circumstances arising in
19 the country of nationality or in the country to which
20 deportation has been ordered, if such evidence is material
21 and was not available and could not have been discovered or
22 presented at the previous hearing.” 8 C.F.R.
23 § 1003.2(c)(3)(ii).
2
1 Here, the BIA did not abuse its discretion in denying
2 petitioners’ untimely and number-barred motion to reopen.
3 Much of the evidence petitioners included with their motion
4 was already submitted, or was available for submission, at
5 the time of their hearing before the IJ, and was therefore
6 not previously unavailable. See id. Furthermore, contrary
7 to petitioners’ conclusory statement that the evidence
8 “depicts worsening country conditions for ethnic Albanians
9 in Montenegro,” the BIA properly found that the evidence
10 merely documented “the continued existence of some police
11 and human rights abuses in Montenegro.” Therefore, the BIA
12 did not abuse its discretion in denying petitioners’ motion
13 to reopen based on their failure to establish changed
14 circumstances in Montenegro. See 8 C.F.R. § 1003.2(c)(2),
15 (c)(3)(ii).
16 Finally, although the BIA erred in finding that Smail
17 Perasevic’s affidavit was “unsworn,” we decline to remand on
18 that basis. See Wei Guang Wang v. BIA, 437 F.3d 270, 275-76
19 (2d Cir. 2006) (declining to remand because the Court could
20 “predict with confidence” that the BIA would reach the same
21 conclusion absent the error). Because that affidavit
22 concerned the same claim that the IJ had previously found
23 not credible, the BIA was under no obligation to afford it
3
1 any probative weight. See Qin Wen Zheng v. Gonzales, 500
2 F.3d 143, 147-48 (2d Cir. 2007) (holding that the agency may
3 properly conclude that a prior adverse credibility
4 determination undermines the authenticity of documentary
5 evidence filed in support of a motion to reopen).
6 For the foregoing reasons, the petition for review is
7 DENIED. Having completed our review, the pending motion for
8 a stay of removal in this petition is DISMISSED as moot.
9 The request for oral argument in this petition is DENIED in
10 accordance with Federal Rule of Appellate Procedure
11 34(a)(2), and Second Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
4