[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 29, 2006
No. 06-11613 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A79-453-547
DEDE LUSHAJ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 29, 2006)
Before DUBINA, HULL and FAY, Circuit Judges.
PER CURIAM:
Dede Lushaj, a citizen of Kosovo and an ethnic Albanian Christian, through
counsel, petitions for review of the Board of Immigration Appeal’s (“BIA”)
decision denying his motion to reopen his proceedings regarding his application for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”), 8 U.S.C. §§ 1158, 1231(b)(3), 8 C.F.R. § 208.16(c). Lushaj arrived in
the United States under the visa waiver program and was referred to the
Immigration Judge (“IJ”) for asylum-only proceedings. Lushaj filed an application
for asylum, withholding of removal, and relief under CAT, alleging that he was
persecuted by Serbians in Kosovo on account of his Albanian ethnicity and
Catholic faith. Lushaj testified that he fled Kosovo and relocated to Germany after
he was detained and beaten twice by security officials in 1991. Lushaj lived in
Germany for nine years, but, when his asylum application was denied there, he
returned to Kosovo. Lushaj testified that he came to the United States to seek
asylum due to religious conflict within the ethnic Albanian community.
The IJ denied Lushaj’s application for asylum, finding that Lushaj did not
establish a well-founded fear of future persecution because there was a significant
change in country conditions in Kosovo, as the Serbs no longer controlled Kosovo.
Lushaj appealed the IJ’s decision to the BIA, which affirmed the IJ’s decision
without opinion. Lushaj subsequently filed the instant motion to
reopen/reconsider, alleging that conditions have changed in Kosovo because Serbs
2
have been the frequent targets of violence. Lushaj attached to his motion two news
articles stating that (1) several Serbs were killed in Kosovo in 2005; (2) Serb
leaders blamed ethnic Albanian extremists; and (3) the identity of the killers was
unknown. The BIA denied Lushaj’s motion to reopen, stating, in relevant part,
that: “the applicant has not met the heavy evidentiary burden governing his
renewed requests for relief. See . . . 8 C.F.R. § 1003.2(c)(1)(2005). With the
motion, the applicant has forwarded copies of two recent periodical articles, which
contain general background information and are not highly probative of his
claims.”
On appeal, Lushaj argues that the BIA abused its discretion in finding that
current conditions in Kosovo do not merit reopening his case because the BIA did
not address the news articles that he submitted with his motion and did not give a
reason for its decision.1 We review the BIA’s denial of a motion to reopen for an
abuse of discretion. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir.
2001). “Judicial review of denials of discretionary relief incident to deportation
proceedings, including motions to reopen, is limited to determining ‘whether there
has been an exercise of administrative discretion and whether the matter of
1
Lushaj does not challenge the BIA’s denial of his motion to reconsider. Therefore, he
has abandoned this issue on appeal. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir.
1998) (holding that issues not argued on appeal are deemed abandoned).
3
exercise has been arbitrary or capricious.’” See Garcia-Mir v. Smith, 766 F.2d
1478, 1490 (11th Cir. 1985).
“[T]here are at least three independent grounds upon which the [BIA] may
deny a motion to reopen: 1) failure to establish a prima facie case; 2) failure to
introduce evidence that was material and previously unavailable; and 3) a
determination that despite the alien’s statutory eligibility for relief, he or she is not
entitled to a favorable exercise of discretion.” Al Najjar, 257 F.3d at 1302.
A motion to reopen to apply or reapply for asylum shall state “new facts”
that would be proven at a new hearing, but “shall not be granted unless it appears
to the Board that evidence sought to be offered is material and was not available
and could not have been discovered or presented at the former hearing . . . .” 8
C.F.R. § 1003.2(c)(1), (c)(3)(ii).
An asylum applicant can establish a well-founded fear of future persecution
by presenting “specific, detailed facts showing a good reason that he or she will be
singled out for persecution on account of” the statutorily listed factor. Sepulveda
v. U.S. Att’y. Gen., 401 F.3d 1226, 1231 (11th Cir. 2004) (quotation omitted).
Alternatively, an applicant can also establish a well-founded fear of persecution,
without showing that he would be singled out for persecution, if the applicant
establishes that there is a pattern or practice of persecution of persons similarly
4
situated to the applicant on account of their race, religion, nationality, membership
in a particular social group or political opinion. 8 C.F.R. § 208.13(b)(2)(iii).
The BIA did not abuse its discretion by denying Lushaj’s motion to reopen
because the documentary evidence presented in support of his motion did not
establish a material change in country conditions in Kosovo. Although Lushaj
relied on the ground that changed country conditions in Kosovo now make him
eligible for asylum and withholding of removal, the articles are not probative of his
claims because they show no incidents of violence against ethnic Albanian
Christians. Instead, the articles reveal that ethnic Albanian extremists have
targeted Serbs, but it was unknown who killed the individuals mentioned in the
articles.
The articles do not indicate that violence between Serbs and ethnic
Albanians in Kosovo has increased or that ethnic Albanian Catholics have been
persecuted. The articles do not establish that Lushaj has a well-founded fear of
persecution because there is no evidence of a pattern or practice of persecution of
ethnic Albanians in Kosovo, and the articles do not indicate that Lushaj would be
singled out for persecution on account of a statutorily protected ground. See 8
C.F.R. § 208.13(b)(2)(iii); Sepulveda, 401 F.3d at 1231. In sum, the articles do not
support Lushaj’s fear of returning to Kosovo, and, therefore, the BIA’s finding that
the articles were not highly probative of his claims was not an abuse of discretion.
5
Moreover, Lushaj’s claim that the BIA did not address the country
conditions evidence or provide a reason for its decision is without merit because
(1) the BIA specifically noted that Lushaj had submitted two articles but found that
Lushaj did not meet his evidentiary burden because the articles were not probative
of his claims; and (2) the BIA referenced 8 C.F.R. § 1003.2(c)(1), which states that
a motion to reopen shall not be granted unless the evidence sought to be offered is
material. Accordingly, the BIA did not abuse its discretion by denying Lushaj’s
motion to reopen, and we deny his petition as to this claim.
Lushaj also argues that the BIA should have reopened his case sua sponte
based on exceptional circumstances and humanitarian grounds because he was
beaten twice by police officers within a two-month period.
We are obligated to inquire into subject-matter jurisdiction whenever it may
be lacking. Chacon-Botero v. United States Att’y Gen., 427 F.3d 954, 956 (11th
Cir. 2005). We review de novo whether we have subject-matter jurisdiction.
Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002).
The Board may at any time reopen or reconsider on its own motion
any case in which it has rendered a decision . . . The decision to grant
or deny a motion to reopen or reconsider is within the discretion of the
Board, subject to the restrictions of this section. The Board has
discretion to deny a motion to reopen even if the party moving has
made out a prima facie case for relief.
8 C.F.R. § 1003.2(a).
6
We have held that 8 C.F.R. § 3.2(a), which is the predecessor to 8 C.F.R.
§ 1003.2, “reposes very broad discretion in the BIA ‘to reopen or reconsider’ any
motion it has rendered at any time or, on the other hand, ‘[to] deny a motion to
reopen.’” Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999) (construing 8
C.F.R. § 3.2, which is substantively identical to 8 C.F.R. § 1003.2). We explained
further that:
The discretion accorded in this provision is so wide that ‘even if the
party moving has made out a prima facie case for relief,’ the BIA can
deny a motion to reopen a deportation order. No language in the
provision requires the BIA to reopen a deportation proceeding under
any set of particular circumstances. Instead, the provision merely
provides the BIA the discretion to reopen immigration proceedings as
it sees fit. Federal circuit courts consistently have interpreted the
provision in this way. They have read 8 C.F.R. § 3.2(a) to give the
BIA the discretion to reopen immigration proceedings in situations
where federal courts lack the legal authority to mandate reopening.
Id. We ultimately held that “[i]n short, the provision gives the BIA non-reviewable
discretion.” Id.
In the instant case, we lack jurisdiction to review the BIA’s decision not to
invoke its sua sponte authority to grant Lushaj’s motion to reopen because that
decision is committed to the discretion of the BIA.2 See Anin, 188 F.3d at 1279.
2
Even if we had jurisdiction to review the BIA’s unstated decision to invoke its sua
sponte authority, Lushaj has not established that the BIA abused its discretion because the
documentary evidence he submitted with his motion to reopen does not show that he has a well-
founded fear of persecution, and the two beatings he received in Kosovo, which did not result in
serious injuries, do not constitute exceptional circumstances warranting a grant of asylum.
7
Accordingly, we dismiss Lushaj’s petition with respect to his claim that the BIA
should have exercised its sua sponte authority to grant his motion to reopen and
deny his petition with respect to his claim that the BIA abused its discretion in
denying his motion to reopen.
DISMISSED IN PART, DENIED IN PART.
8