11-650-ag
Kodza v. Holder
BIA
A070 530 906
A070 530 907
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 26th day of March, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 ISLAM KODZA, MERITA KODZA,
14 Petitioners,
15
16 v. 11-650-ag
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONERS: Justin Conlon, North Haven,
25 Connecticut
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Jennifer P. Levings, Senior
29 Litigation Counsel; Tim Ramnitz,
30 Attorney, Office of Immigration
1 Litigation, Civil Division, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioners Islam Kodza and Merita Kodza, natives of
10 the former Yugoslavia and citizens of Macedonia, seek review
11 of a February 3, 2011, order of the BIA denying their motion
12 to reopen. In re Islam Kodza, Merita Kodza, Nos. A070 530
13 906/907 (B.I.A Feb. 3, 2011). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 in this case.
16 We review the BIA’s denial of a motion to reopen for
17 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
18 Cir. 2006). When the BIA considers relevant evidence of
19 country conditions in evaluating a motion to reopen, we
20 review the BIA’s factual findings under the substantial
21 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
22 138, 169 (2d Cir. 2008).
23 Here, because the Kodzas filed their motion to reopen
24 more than 90 days after the BIA issued a final order of
2
1 removal in their case, they were required to show materially
2 changed circumstances in Macedonia to excuse the untimely
3 filing. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii). The BIA
4 reasonably found that the Kodzas did not establish such a
5 change.
6 Although the Kodzas submitted with their motion to
7 reopen evidence showing, inter alia, violent confrontations
8 between Macedonian police and armed ethnic Albanian
9 extremists, and discriminatory treatment based on
10 disagreements over the use of the Albanian language and
11 flag, they had submitted evidence of similar mistreatment in
12 their original removal proceedings. Thus, the BIA
13 reasonably concluded that the evidence did not show a
14 material change in country conditions, only a continuation
15 of the same type of mistreatment that the Kodzas had shown
16 during their original proceedings. See Matter of S-Y-G-, 24
17 I. & N. Dec. 247, 253 (BIA 2007).
18 The Kodzas’ argument that the BIA erred by finding that
19 the country reports that they submitted with their motion
20 were “outdated” is without merit. As the Kodzas’ motion to
21 reopen was filed in June 2010, and the most recent country
22 reports they submitted were dated 2009, and primarily
3
1 addressed events that took place in 2008 and earlier, the
2 BIA reasonably found that the reports were not current. To
3 the extent that the Kodzas’ argument can be construed as a
4 challenge to the evidentiary weight that the agency afforded
5 the reports, it is similarly unavailing. See Xiao Ji Chen
6 v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).
7 The Kodzas’ argument that the BIA erred in finding that
8 the 2010 news articles they submitted with their motion only
9 showed “isolated clashes” between Macedonian authorities and
10 ethnic Albanians is also unpersuasive. As the six 2010 news
11 articles submitted by the Kodzas provided accounts of only
12 two different confrontations involving gunfire between
13 Macedonian authorities and ethnic Albanians, the BIA
14 reasonably found that the news articles described “isolated”
15 events. Moreover, the articles describing the confrontation
16 between Macedonian authorities and ethnic Albanian arms
17 smugglers demonstrate, at most, possible “police
18 mistreatment motivated by animus against suspected
19 [criminals] of any ethnicity, religion, or political
20 opinion.” Lecaj v. Holder, 616 F.3d 111, 118 (2d Cir.
21 2010).
22
4
1 Finally, the Kodzas’ claim that the BIA improperly took
2 administrative notice of facts in a recent State Department
3 report without giving the Kodzas advance notice and an
4 opportunity to respond is not supported by the record. In
5 any event, even if the BIA had taken administrative notice
6 of facts in the State Department report without providing
7 the Kodzas with an opportunity to challenge the facts, that
8 error would be harmless because nothing in the record
9 suggests that the BIA gave the administratively noticed
10 facts dispositive weight in deciding the motion. See Ajdin
11 v. Bureau of Citizenship & Immigration Servs., 437 F.3d 261,
12 266 (2d Cir. 2006).
13 Because substantial evidence supports the BIA’s finding
14 that the Kodzas failed to demonstrate changed country
15 conditions, the BIA did not abuse its discretion in denying
16 their motion to reopen as untimely. See 8 U.S.C.
17 § 1229a(c)(7)(C)(i), (ii); Jian Hui Shao, 546 F.3d at 169.
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
5
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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