Filed: Apr. 06, 2017
Latest Update: Mar. 03, 2020
Summary: 16-894 Xhuti v. Sessions BIA Morace, IJ A095 378 310 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 NO
Summary: 16-894 Xhuti v. Sessions BIA Morace, IJ A095 378 310 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..
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16-894
Xhuti v. Sessions
BIA
Morace, IJ
A095 378 310
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 6th day of April, two thousand seventeen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 EDIOLI XHUTI,
14 Petitioner,
15
16 v. 16-894
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael P. DiRaimondo, Melville, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Linda S.
27 Wernery, Assistant Director; Walter
28 Bocchini, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Edioli Xhuti, a native and citizen of Albania,
6 seeks review of a February 24, 2016, decision of the BIA,
7 affirming an August 27, 2014, decision of an Immigration Judge
8 (“IJ”) denying Xhuti’s motion to reopen. In re Edioli Xhuti,
9 No. A095 378 310 (B.I.A. Feb. 24, 2016), aff’g No. A095 378 310
10 (Immig. Ct. N.Y. City Aug. 27, 2014). We assume the parties’
11 familiarity with the underlying facts and procedural history
12 in this case.
13 We have reviewed both the IJ’s and the BIA’s decisions “for
14 the sake of completeness.” Wangchuck v. Dep’t of Homeland
15 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
16 standards of review are well established. See Jian Hui Shao
17 v. Mukasey,
546 F.3d 138, 168-69 (2d Cir. 2008).
18 In his motion to reopen, Xhuti argued that worsened
19 conditions in Albania for Democratic Party members, such as
20 himself, should excuse the untimely filing of his motion and
21 the untimeliness of the asylum application he would file in
22 reopened proceedings. It is undisputed that Xhuti’s 2014
23 motion to reopen was untimely filed more than two years after
2
1 the IJ’s 2012 order of removal (and grant of withholding of
2 removal) became final. See 8 U.S.C. § 1229a(c)(7)(C)(i);
3 8 C.F.R. § 1003.23(b)(1). However, the time limitation for
4 filing a motion to reopen does not apply if the motion “is based
5 on changed country conditions arising in the country of
6 nationality or the country to which removal has been ordered,
7 if such evidence is material and was not available and would
8 not have been discovered or presented at the previous
9 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
10 § 1003.23(b)(4)(i).
11 The agency reasonably concluded that Dr. Bernd Fischer’s
12 declaration did not demonstrate a material change in Albania
13 for Democratic Party members. In re S-Y-G-, 24 I. & N. Dec.
14 247, 253 (BIA 2007). Dr. Fischer’s 2013 declaration discusses
15 the continuation of political unrest, violence, and corruption
16 similar to that described in his 2011 affidavit, which was in
17 the record of Xhuti’s underlying proceedings. Although the
18 Socialist Party won a majority of parliamentary seats in Albania
19 in 2013, that alone does not demonstrate that Xhuti is at greater
20 risk of harm, particularly given that Dr. Fischer’s statements
21 indicate that political unrest and violence are caused by both
22 political parties and appear to continue no matter which party
23 controls the parliament.
3
1 Accordingly, because the agency reasonably found that
2 Xhuti did not demonstrate a material change in country
3 conditions in Albania, it did not abuse its discretion in
4 denying his motion to reopen as untimely. See 8 U.S.C.
5 § 1229a(c)(7)(C); see also In re S-Y-G-, 24 I. & N. Dec. at 253,
6 257.
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of removal
9 that the Court previously granted in this petition is VACATED,
10 and any pending motion for a stay of removal in this petition
11 is DISMISSED as moot. Any pending request for oral argument
12 in this petition is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
4
