10-551-ag
    Sela v. Holder
                                                                                  BIA
                                                                          A095 476 225



                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 23rd day of September, two thousand eleven.

    PRESENT:
             JON O. NEWMAN,
             ROBERT A. KATZMANN,
             GERARD E. LYNCH,
                 Circuit Judges.
    ______________________________________
    RESHIT SELA,
             Petitioner,
                     v.                                    10-551-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:         Sam Gjoni, New York, N.Y.
    FOR RESPONDENT:         Tony West, Assistant Attorney General;
                            Terri J. Scadron, Assistant Director;
                            Micheline Hershey, Attorney, Office of
                            Immigration Litigation, Civil Division,
                            United States Department of Justice,
                            Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Reshit Sela, a native of the former Yugoslavia and

citizen of Macedonia, seeks review of a January 14, 2010

order of the BIA denying his motion to reopen.     In re Reshit

Sela, No. A095 476 225 (B.I.A. Jan. 14, 2010).    We assume

the parties’ familiarity with the underlying facts and

procedural history of this case.

    We review the BIA’s denial of a motion to reopen for

abuse of discretion.     Ali v. Gonzales, 

, 517 (2d

Cir. 2006).   When the BIA considers relevant evidence of

country conditions in evaluating a motion to reopen, we

review the BIA’s factual findings under the substantial

evidence standard.     See Jian Hui Shao v. Mukasey, 

, 169 (2d Cir. 2008).

    Here, because Sela filed his motion to reopen more than

90 days after the BIA issued a final order of removal in his

case, he was required to show changed circumstances in

Macedonia to excuse the untimely filing.     See 8 U.S.C.

§ 1229a(c)(7)(C)(i), (ii).    The BIA reasonably found that

Sela did not demonstrate changed country conditions.

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    As an initial matter, the BIA did not abuse its

discretion in declining to consider Sela’s evidence

describing his desertion from the Macedonian army because he

did not establish that the evidence was new and could not

have been presented in his original hearing.     See 8 C.F.R.

§ 1003.2(c)(1) (“A motion to reopen proceedings shall not be

granted unless it appears to the Board that evidence sought

to be offered is material and was not available and could

not have been discovered or presented at the former

hearing.”).

    Although Sela submitted with his motion to reopen

evidence detailing police abuse and discrimination against

ethnic Albanians, he had submitted similar evidence of

mistreatment in his original proceedings.     Thus, the BIA

reasonably concluded that his evidence did not indicate

changed conditions, but rather a continuation of the same

mistreatment.   See Matter of S-Y-G-, 24 I. & N. Dec. 247,

253 (BIA 2007) (“[W]e compare the evidence of country

conditions submitted with the motion to those that existed

at the time of the merits hearing below.”).     The BIA also

reasonably found that Sela’s evidence of a change in

Macedonia’s draft law did not establish a material change in

country conditions, because the agency in Sela’s underlying


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proceeding had already determined that Sela’s fear of

punishment under Macedonia’s draft laws would not establish

his eligibility for asylum as it was not on account of a

protected ground.   See Jian Hui 

(affirming denial of motion to reopen where petitioner’s

evidence failed to establish “a reasonable possibility that

[the petitioner] would face enforcement amounting to

persecution”).

    Thus, the BIA did not abuse its discretion in denying

Sela’s motion to reopen as untimely.   See 8 U.S.C.

§ 1229a(c)(7)(C)(i),(ii).   Accordingly, we do not address

Sela’s remaining arguments on appeal, which in effect seek

reconsideration of the agency’s denial of his original claim

that he established his eligibility for asylum based on past

persecution.

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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