12-2817
Kolami v. Holder
BIA
A 095 356 335
A 095 356 336
A 095 356 337
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 21st day of May, two thousand thirteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11
12
13 VALENT KOLAMI, GENTIANA KOLAMI, FRANC
14 KOLAMI,
15 Petitioners,
16
17 v. 12-2817
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Michael P. DiRaimondo, Melville, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
28 Assistant Attorney General; John S.
1 Hogan, Senior Litigation Counsel;
2 Aimee J. Carmichael, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of Justice,
5 Washington, D.C.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Valent, Gentiana, and Franc Kolami (“Petitioners”),
11 natives and citizens of Albania, seek review of a July 2012
12 decision of the BIA denying their motion to reopen. In re
13 Valent, Gentiana, and Franc Kolami, Nos. A095 356 335/336/337
14 (B.I.A. July 10, 2012). We assume the parties’ familiarity
15 with the underlying facts and procedural history of this case.
16 We review the BIA’s denial of Petitioners’ motion to
17 reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d
18 515, 517 (2d Cir. 2006) (per curiam). In general, an alien
19 may file only one motion to reopen and must do so within 90
20 days of the agency’s final administrative decision. 8 U.S.C.
21 § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). Although
22 Petitioners’ motion was indisputably untimely because it was
23 filed more than seven years after the agency’s final order of
24 removal, there is no time limitation if the motion is “based
2
1 on changed country conditions arising in the country of
2 nationality or the country to which removal has been ordered,
3 if such evidence is material and was not available and would
4 not have been discovered or presented at the previous
5 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
6 § 1003.2(c)(3)(ii). Further, if the movant can demonstrate
7 ineffective assistance of counsel and has exercised “due
8 diligence” in pursuing his claim, the time limitations on a
9 motion to reopen may be equitably tolled. See Rashid v.
10 Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008).
11 At the outset, we agree with the government that, with
12 respect to ineffective assistance of counsel, Petitioners have
13 not sufficiently challenged the BIA’s dispositive finding that
14 they failed to comply with the requirements set forth in
15 Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), and we
16 deem this challenge waived. Yueqing Zhang v. Gonzales, 426
17 F.3d 540, 545 n.7 (2d Cir. 2005).
18 Contrary to Petitioners’ argument that the BIA violated
19 their due process rights by failing to consider all of the
20 evidence in their motion to reopen, there is substantial
21 evidence in the BIA’s opinion that it gave reasoned
22 consideration to the relevant evidence. See Wei Guang Wang v.
3
1 Bd. of Immigration Appeals, 437 F.3d 270, 275 (2d Cir. 2006)
2 (rejecting argument that “where the BIA has given reasoned
3 consideration to the petition, and made adequate findings, it
4 must expressly parse or refute on the record each individual
5 argument or piece of evidence offered by the petitioner”
6 (internal quotation marks omitted)).
7 We find no error in the BIA’s conclusion that Petitioners
8 failed to demonstrate materially changed conditions in Albania
9 that would excuse the untimely filing of their motion, as
10 substantial evidence indicates a continuation of poor
11 conditions that existed at the time of Petitioners’ merits
12 hearing, rather than a change in Albania’s human rights
13 practices. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
14 § 1003.2(c)(3)(ii); Matter of S-Y-G-, 24 I. & N. Dec. 247, 253
15 (B.I.A. 2007) (noting that in evaluating evidence of changed
16 country conditions, the BIA “compare[s] the evidence of
17 country conditions submitted with the motion to those that
18 existed at the time of the merits hearing below”).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of removal
21 that the Court previously granted in this petition is VACATED,
22 and any pending motion for a stay of removal in this petition
4
1 is DISMISSED as moot. Any pending request for oral argument
2 in this petition is DENIED in accordance with Federal Rule of
3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
4 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
5