08-4473-ag
Agostin v. Holder
BIA
A79 669 224
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 1 st day of February, two thousand ten.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 JUBANI AGOSTIN, a.k.a. ZEF GJON VOLAJ,
14 Petitioner,
15
16 v. 08-4473-ag
17 NAC
18 ERIC H. HOLDER, JR., ATTORNEY GENERAL, 1
19 Respondent.
20
21 _______________________________________
22
23
24
25
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr. is automatically substituted
for former Attorney General Michael B. Mukasey as respondent in this
case.
1 FOR PETITIONER: Charles Christophe, New York, New
2 York.
3
4 FOR RESPONDENT: Gregory G. Katsas, Assistant
5 Attorney General, James A. Hunolt,
6 Senior Litigation Counsel,
7 Christopher P. McGreal, Trial
8 Attorney, Office of Immigration
9 Litigation, Civil Division, United
10 States Department of Justice,
11 Washington, D.C.
12
13 UPON DUE CONSIDERATION of this petition for review of a
14 decision of the Board of Immigration Appeals (“BIA”), it is
15 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
16 review is DENIED.
17 Petitioner Jubani Agostin, a native and citizen of
18 Albania, seeks review of an August 12, 2008 order of the BIA
19 denying his motions to reopen and reconsider. In re Jubani
20 Agostin, No. A79 669 224 (B.I.A. Aug. 12, 2008). We assume
21 the parties’ familiarity with the underlying facts and
22 procedural history of the case.
23 As a preliminary matter, we lack jurisdiction to
24 consider Agostin’s argument that the BIA should have
25 reopened his proceedings sua sponte. See 8 C.F.R.
26 § 1003.2(a); Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d
27 Cir. 2006). Because Agostin fails to challenge the BIA’s
28 denial of his untimely motion to reconsider, we deem any
2
1 such argument waived. See Yueqing Zhang v. Gonzales, 426
2 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
3 We review the BIA’s denial of a motion to reopen for
4 abuse of discretion. See Ali, 448 F.3d at 517. Here, the
5 BIA properly denied Agostin’s motion to reopen as untimely
6 where it was filed over a year after his 2006 final order of
7 removal. See 8 C.F.R. § 1003.2(c)(2) (providing that an
8 applicant must file a motion to reopen within ninety days of
9 the final administrative decision). Moreover, the BIA did
10 not abuse its discretion in finding that Agostin failed to
11 present material evidence of changed country conditions
12 sufficient to satisfy the exception to the time limitation.
13 See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
14 § 1003.2(c)(3)(ii); INS v. Abudu, 485 U.S. 94, 104-105
15 (1988).
16 Contrary to Agostin’s argument that the BIA failed to
17 consider the evidence he submitted, the BIA explicitly found
18 two inconsistencies between that new evidence and the
19 evidence already in the record. Agostin failed to explain
20 these inconsistencies. Particularly where the IJ had
21 already found that Agostin was not credible, a finding we
22 previously affirmed, we find no basis to disturb the
3
1 agency’s denial of Agostin’s motion. See Kaur v. Board of
2 Immigration Appeals, 413 F.3d 232, 233-34 (2d Cir. 2005);
3 Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir.
4 2007).
5 For the foregoing reasons, the petition for review is
6 DENIED. The pending motion for a stay of removal in this
7 petition is DISMISSED as moot.
8
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
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