Filed: Jan. 06, 2011
Latest Update: Feb. 21, 2020
Summary: 09-4993-ag Mehovic v. Holder BIA A075 897 660 A075 897 661 A075 897 662 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 DA
Summary: 09-4993-ag Mehovic v. Holder BIA A075 897 660 A075 897 661 A075 897 662 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 DAT..
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09-4993-ag
Mehovic v. Holder
BIA
A075 897 660
A075 897 661
A075 897 662
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 6 th day of January, two thousand eleven.
5
6 PRESENT:
7 ROGER J. MINER,
8 JOSEPH M. McLAUGHLIN,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _______________________________________
12
13 MUJO MEHOVIC, ALSO KNOWN AS MUJO MEJOVIC,
14 NAZIRA MEHOVIC, ARJAN MEHOVIC
15 Petitioners,
16
17 v. 09-4993-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONERS: Charles Christophe, Christophe &
25 Associates, P.C., New York, New
26 York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Paul Fiornio, Senior
1 Litigation Counsel; Catherine B.
2 Bye, Attorney, Office of Immigration
3 Litigation, Civil Division, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED, in part, and DISMISSED, in part.
11 Petitioners Mujo Mehovic, Nazira Mehovic, and Arjan
12 Mehovic, natives and citizens of the area of the former
13 Yugoslavia that is now Montenegro and ethic Albanian
14 Muslims, seek review of a November 13, 2009, order of the
15 BIA denying their motion to reopen their asylum-only
16 proceedings. In re Mujo Mehovic, Nazira Mehovic, Arjan
17 Mehovic, Nos. A075 897 660/661/662 (B.I.A. Nov. 13, 2009).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history in this case.
20 We review the BIA’s denial of a motion to reopen for
21 abuse of discretion, mindful of the Supreme Court’s
22 admonition that such motions are “disfavored.” Ali v.
23 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
24 Doherty,
502 U.S. 314, 322-23 (1992)). When the BIA
25 considers relevant evidence of country conditions in
2
1 evaluating a motion to reopen, we review the BIA’s factual
2 findings under the substantial evidence standard. See Jian
3 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
4 Because petitioners filed this, their second, motion to
5 reopen, more than ninety days after the denial of their
6 original appeal to the BIA, they were required to show
7 changed circumstances in their country of nationality in
8 order for their motion to be exempt from the applicable time
9 and number limitations. See 8 C.F.R. § 1003.2(c)(2),
10 (c)(3)(ii).
11 Petitioners contend that the BIA abused its discretion
12 in denying their motion as untimely by failing to consider
13 their evidence regarding changed country conditions. The
14 record does not support this claim, as the BIA explicitly
15 referenced the evidence presented by petitioners. Cf. Xiao
16 Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 336 n.17 (2d
17 Cir. 2006) (holding that, in reviewing the agency’s
18 determination for “substantial evidence,” we “presume that
19 [the agency] has taken into account all of the evidence
20 before [it], unless the record compellingly suggests
21 otherwise”).
22 Moreover, the BIA reasonably found that petitioners did
3
1 not establish changed country conditions. See Jian Hui
2 Shao, 546 F.3d at 169. Although petitioners submitted
3 evidence detailing discrimination against Albanian Muslims
4 in Montenegro and continuing problems in the country, this
5 does not indicate changed conditions because the record
6 included evidence of similar problems at the time of
7 petitioners’ initial asylum hearing. See Matter of S-Y-G-,
8 24 I. & N. Dec. 247, 253 (B.I.A. 2007). Petitioners
9 primarily rely on articles about the arrest, and alleged
10 torture, of 14 Albanians accused of terrorism to show
11 changed country conditions. We have previously determined
12 that such evidence does not demonstrate persecution of
13 Albanians. See Lecaj v. Holder,
616 F.3d 111, 117-19 (2d
14 Cir. 2010) (stating that this “single incident of police
15 abuse” shows only “animus against suspected terrorists” and
16 not discrimination against an ethnic minority or religious
17 group). Because substantial evidence supports the BIA’s
18 finding that Mehovic failed to demonstrate changed country
19 conditions, the BIA did not abuse its discretion in denying
20 his motion to reopen.
21 Finally, to the extent that petitioners request review
22 of the BIA’s decision not to reopen their proceedings sua
4
1 sponte, we lack jurisdiction to review the BIA’s decision
2 not to exercise its authority to reopen a case sua sponte
3 under 8 C.F.R. § 1003.2(a), because such a decision is
4 “entirely discretionary.” Ali, 448 F.3d at 518.
5 For the foregoing reasons, the petition for review is
6 DENIED, in part, and DISMISSED, in part. As we have
7 completed our review, any stay of removal that the Court
8 previously granted in this petition is VACATED, and any
9 pending motion for a stay of removal in this petition is
10 DISMISSED as moot. Any pending request for oral argument in
11 this petition is DENIED in accordance with Federal Rule of
12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
13 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
5
