Filed: Sep. 23, 2014
Latest Update: Mar. 02, 2020
Summary: 12-4971 Kraja v. Holder BIA Weisel, IJ A095 367 448 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 NOT
Summary: 12-4971 Kraja v. Holder BIA Weisel, IJ A095 367 448 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 NOTA..
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12-4971
Kraja v. Holder
BIA
Weisel, IJ
A095 367 448
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 23rd day of September, two thousand fourteen.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
_____________________________________
ILIR KRAJA,
Petitioner,
v. 12-4971
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Theodore Vialet, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Shelley R. Goad, Assistant
Director; Kristen Giuffreda Chapman,
Trial Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Ilir Kraja, a native and citizen of Albania, seeks review
of a November 29, 2012 decision of the BIA affirming the July
13, 2011 decision of Immigration Judge (“IJ”) Robert D.
Weisel, which denied both his motion to reopen and his motion
to remand. In re Ilir Kraja, No. A095 367 448 (B.I.A. Nov.
29, 2012), aff’g No. A095 367 448 (Immig. Ct. N.Y. City July
13, 2011). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well established. See Jian Hui Shao
v. Mukasey,
546 F.3d 138, 168-69 (2d Cir. 2008); see also Li
Yong Cao v. U.S. Dep’t of Justice,
421 F.3d 149, 156-57 (2d
Cir. 2005).
2
A. Motion to Reopen
It is undisputed that Kraja’s 2011 motion to reopen was
untimely, as it was filed more than 90 days after the IJ’s
2003 order of removal became final. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.23(b)(1).
However, the time limitation for filing a motion to reopen
does not apply if the motion is “based on changed country
conditions arising in the country of nationality or the
country to which removal has been ordered, if such evidence is
material and was not available and would not have been
discovered or presented at the previous proceedings.”
8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.23(b)(4)(i).
In this case, the agency did not err in concluding that
Kraja failed to establish changed conditions in Albania
because he did not submit any evidence (such as affidavits) to
support his assertion that members of the Socialist Party
recently had caused his parents and brother unspecified
“problems.” He also failed to explain how these asserted
conditions differed from those at the time of his 2003
proceedings, during which he also alleged that his family had
problems with the Socialist Party. See 8 U.S.C.
3
§ 1229a(c)(7)(C)(ii); see also In re S-Y-G-, 24 I.& N. Dec.
247, 253 (B.I.A. 2007) (“In determining whether evidence
accompanying a motion to reopen demonstrates a material change
in country conditions that would justify reopening, [the BIA]
compare[s] the evidence of country conditions submitted with
the motion to those that existed at the time of the merits
hearing below.”).
The agency also did not err in declining to toll the time
period for filing Kraja’s motion based on his ineffective
assistance of counsel claim. We have held that a petitioner
raising such a claim must comply with the procedural
requirements set forth in Matter of Lozada, 19 I. & N. Dec.
637 (B.I.A.), or explain his failure to do so. See Jian Yun
Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46-48 (2d Cir.
2005) (holding that petitioner “who has failed to
substantially comply with the Lozada requirements in [his]
motion to reopen before the BIA forfeits [his] ineffective
assistance of counsel claim in this Court”). Here, Kraja has
failed to satisfy the requisite procedural requirements and
has made no effort to explain why his lack of compliance
should be excused. Accordingly, the agency did not abuse its
discretion in denying his motion to reopen as untimely. See
4
8 U.S.C. § 1229a(c)(7)(C); see also Jian Hui Shao, 546 F.3d at
169.
B. Motion to Remand
While his appeal was pending before the BIA, Kraja
submitted additional evidence in the form of a motion to
reconsider, which the BIA construed as a motion to remand.1
“A motion to remand that relies on newly available evidence is
held to the substantive requirements of a motion to reopen.”
Li Yong Cao, 421 F.3d at 156. Therefore, the agency may deny
a motion to remand based on “the movant’s failure to make a
prima facie case of eligibility for asylum.”
Id.
Kraja’s motion included background documents and letters
from his father stating his circumstances since returning to
Albania. The letters did not, however, demonstrate that his
father suffered persecution or provide any basis for
concluding that Kraja would face threats or harm if he
returned to Albania. The BIA did not err in concluding that
this evidence failed to establish his prima facie eligibility
for asylum and related relief, i.e., a realistic chance of
obtaining relief. See Jian Hui
Shao, 546 F.3d at 168-73.
1
Kraja does not contend that the BIA erred in construing his
motion as a motion to remand.
5
Additionally, Kraja’s motion introduced evidence that he
is now eligible for adjustment of status as the beneficiary of
an approved visa petition. Because this “self-induced change
in personal circumstances” is not an exception to the time
limitation for filing a motion to reopen, Wei Guang Wang v.
BIA, 437 F.3d 270, 274 (2d Cir. 2006), the BIA construed his
motion as a request to reopen proceedings sua sponte, and
denied the request. We lack jurisdiction to review this
discretionary denial. See Ali v. Gonzales,
448 F.3d 515, 518
(2d Cir. 2006) (holding that this Court lacks jurisdiction to
review the BIA's “entirely discretionary” decision to decline
to reopen proceedings sua sponte).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
6
