Filed: May 01, 2015
Latest Update: Mar. 02, 2020
Summary: 14-657 Emin v. Lynch BIA A095 369 508/9/10 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 “SU
Summary: 14-657 Emin v. Lynch BIA A095 369 508/9/10 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 “SUM..
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14-657
Emin v. Lynch
BIA
A095 369 508/9/10
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
TO 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 1st day of May, two thousand fifteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 ADRIAN EMIN, MINA EMIN, MALVIN
14 EMIN,
15 Petitioners,
16
17 v. 14-657
18 NAC
19
20 LORETTA E. LYNCH, UNITED STATES
21 ATTORNEY GENERAL*,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Michael P. DiRaimondo, DiRaimondo &
26 Masi, LLP, Melville, New York.
*Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is
automatically substituted for former Attorney General Eric H. Holder, Jr.
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; Anthony P.
3 Nicastro, Senior Litigation
4 Counsel; Dana M. Camilleri, Trial
5 Attorney, Office of Immigration
6 Litigation, U.S. Department of
7 Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioners, natives and citizens of Albania, seek
14 review of the BIA’s February 11, 2014, decision denying
15 their motion to reopen. In re Adrian, Mina, Malvin Emin
16 Nos. A095 369 508/9/10 (B.I.A. Feb. 11, 2014). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 We review the denial of a motion to reopen for abuse
20 of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
21 2006). When the agency considers relevant evidence of
22 country conditions in evaluating a motion to reopen, we
23 review the agency’s factual findings under the substantial
24 evidence standard. Jian Hui Shao v. Mukasey,
546 F.3d 138,
25 169 (2d Cir. 2008).
2
1 An applicant may file one motion to reopen within 90
2 days of the date on which a final administrative decision
3 was rendered in the proceeding sought to be reopened. 8
4 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
5 It is undisputed that Petitioners motion to reopen was
6 untimely and number-barred because it was their second
7 motion and it was filed more than nine years after their
8 orders of removal became final. 8 U.S.C.
9 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the
10 limitations do not apply where a motion is “based on changed
11 country conditions arising in the country of nationality or
12 the country to which removal has been ordered, if such
13 evidence is material and was not available and would not
14 have been discovered or presented at the previous
15 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
16 § 1003.2(c)(3)(ii). Or the deadline may be tolled if the
17 applicant can demonstrate ineffective assistance of counsel,
18 and that he acted with due diligence in pursuing his claim.
19 Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008); see
20 also Cekic v. INS,
435 F.3d 167, 170 (2d Cir. 2006)
21 (requiring an alien to demonstrate due diligence independent
3
1 from the requirement of demonstrating ineffective assistance
2 of former counsel).
3 It was not error for the agency to conclude that
4 Petitioners failed to show a material change in country
5 conditions between their asylum hearing and the filing of
6 their motion to reopen. The evidence showed that pervasive
7 election-related violence and corruption in Albania existed
8 in the years preceding their 2003 asylum hearing and
9 continued at the time of their 2013 motion to reopen. See
10 Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006)
11 (establishing date of hearing as baseline for assessing
12 whether evidence establishes changed conditions).
13 Accordingly, it was not error to conclude that the recent
14 evidence—even if it showed marginally worsened
15 conditions—was insufficient to show a material change in
16 country conditions excusing the applicable procedural
17 limitations. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
18 § 1003.2(c)(3)(ii); see also In re S-Y-G-, 24 I. & N. Dec.
19 247, 257 (B.I.A. 2007) (“Change that is incremental or
20 incidental does not meet the regulatory requirements” for
21 motions to reopen based on changed country conditions).
4
1 And, as the BIA observed, evidence of generalized violence
2 and unrest in Albania was insufficient to show that
3 Petitioners’ fears differed from the population as a whole.
4 See Melgar de Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir.
5 1999) (“General violence in [a country] does not constitute
6 persecution, nor can it form a basis for petitioner’s well-
7 founded fear of persecution.”).
8 With respect to tolling based on ineffective assistance
9 of counsel, Petitioners are required to demonstrate “due
10 diligence” in pursuing that claim “during the entire period
11 [they] . . . [sought] to toll.”
Rashid, 533 F.3d at 132;
12 see also Iavorski v. INS,
232 F.3d 124, 134 (2d Cir. 2000).
13 Even assuming that Petitioners have shown their former
14 counsel to be ineffective, the BIA did not abuse its
15 discretion in finding that they did not pursue their claim
16 with due diligence. See
Cekic, 435 F.3d at 170 (requiring
17 an alien to demonstrate due diligence independent from the
18 requirement of demonstrating ineffective assistance of
19 former counsel). As the BIA observed, Petitioners learned
20 of counsel’s misconduct in April 2012 at the latest, when
21 their new counsel informed them of former counsel’s errors.
5
1 However, they waited until September 2013, approximately a
2 year and a half later, to file their bar complaint against
3 their former counsel, and did not file a motion to reopen
4 with the BIA until October 2013.
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
17
6
