Filed: Jan. 20, 2010
Latest Update: Mar. 02, 2020
Summary: 08-4956-ag Duka v. Holder BIA A095 149 726 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: 08-4956-ag Duka v. Holder BIA A095 149 726 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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08-4956-ag
Duka v. Holder
BIA
A095 149 726
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 20 th day of January, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 _________________________________________
13
14 SHKELQIM DUKA,
15 Petitioner,
16
17 v. 08-4956-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL, *
21 Respondent.
22 _________________________________________
23
24
25
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Michael P. DiRaimondo, DiRaimondo &
2 Masi, LLP, Melville, New York.
3
4 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
5 Attorney General; Thomas B.
6 Fatouros, Senior Litigation Counsel;
7 Lynda A. Do, Attorney, Office of
8 Immigration Litigation, United
9 States Department of Justice,
10 Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED, that the petition for review
15 is DENIED.
16 Petitioner Shkelqim Duka, a native of the former
17 Yugoslavia and a citizen of Macedonia, seeks review of a
18 September 30, 2008 order of the BIA denying his motion to
19 reopen. In re Shkelqim Duka, No. A095 149 726 (B.I.A. Sept.
20 30, 2008). We assume the parties’ familiarity with the
21 underlying facts and procedural history in this case.
22 We review the BIA’s denial of Duka’s motion to reopen
23 for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233
24 (2d Cir. 2005) (per curiam). There is no dispute that
25 Duka’s second motion to reopen was untimely and number-
26 barred. See 8 C.F.R. § 1003.2(c)(2). However, there is no
27 time limitation for filing a motion to reopen if it is
2
1 “based on changed circumstances arising in the country of
2 nationality or in the country to which deportation has been
3 ordered, if such evidence is material and was not available
4 and could not have been discovered or presented at the
5 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The BIA
6 reasonably found that Duka’s motion to reopen did not
7 qualify for such an exception.
8 In determining that Duka failed to demonstrate that
9 country conditions in Macedonia had materially worsened, the
10 BIA extensively considered the 2007 U.S. Department of
11 State’s report on Human Rights Practices in Macedonia (“2007
12 Report”) and reasonably found that the report demonstrated
13 that although discrimination against ethnic minorities
14 continued, overall ethnic tensions had decreased and the
15 Macedonian government had taken steps to improve rights for
16 minorities. Moreover, contrary to Duka’s assertion that the
17 BIA violated his due process rights by failing adequately to
18 consider a report from Dr. Bernd J. Fischer, the BIA
19 acknowledged Dr. Fischer’s report and reasonably found that
20 it did not portray a situation in Macedonia different from
21 the 2007 Report. See Jian Hui Shao v. Mukasey, 546 F.3d
22 138, 169 (2d Cir. 2008) (noting that the Court does not
3
1 “attempt to resolve conflicts in record evidence, a task
2 largely within the discretion of the agency”). Furthermore,
3 the BIA did not err in declining to credit Dr. Fischer’s
4 ultimate conclusion that there was a reasonable possibility
5 that Duka would face “persecution in the form of a threat to
6 his safety” because that conclusion was based in part on
7 Duka’s assertion that he had been detained and beaten in the
8 past – a claim that was deemed not credible in his
9 underlying proceedings. See Kaur, 413 F.3d at 234
10 (concluding that the BIA did not err in finding petitioner’s
11 evidence not material because it did not rebut the agency’s
12 underlying adverse credibility determination); see also Qin
13 Wen Zheng v. Gonzales,
500 F.3d 143, 147 (2d Cir. 2007).
14 Accordingly, the BIA did not abuse its discretion in
15 denying Duka’s motion to reopen. See 8 C.F.R. § 1003.2(c);
16 see also
Kaur, 413 F.3d at 234. Finally, because Duka had
17 filed an untimely and number-barred motion to reopen his
18 removal proceedings, the BIA was under no obligation to
19 consider separately his eligibility for CAT relief. See
20 8 C.F.R. § 1003.2(c)(2).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12 By:___________________________
5
