Filed: Apr. 05, 2012
Latest Update: Feb. 22, 2020
Summary: 09-4922-ag Balliu v. Holder BIA A098 040 309 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: 09-4922-ag Balliu v. Holder BIA A098 040 309 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 “S..
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09-4922-ag
Balliu v. Holder BIA
A098 040 309
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 5th day of April, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROSEMARY S. POOLER,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 FLORJAN BALLIU,
15 Petitioner,
16
17 v. 09-4922-ag
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Andrew P. Johnson, New York, New
26 York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Lyle D. Jentzer, Senior
30 Litigation Counsel; Jeffrey L.
31 Menkin, Trial Attorney, Office of
32 Immigration Litigation, United
1 States Department of Justice,
2 Washington, D.C.
3 UPON DUE CONSIDERATION of this petition for review of a
4 decision of the Board of Immigration Appeals (“BIA”), it is
5 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
6 review is DENIED.
7 Florjan Balliu, a native and citizen of Albania, seeks
8 review of an October 29, 2009, order of the BIA denying his
9 motion to reopen. In re Florjan Balliu, No. A098 040 309
10 (B.I.A. Oct. 29, 2009). We assume the parties’ familiarity
11 with the underlying facts and procedural history of this
12 case.
13 We review the BIA’s denial of Balliu’s motion to reopen
14 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
15 (2d Cir. 2006). An alien may file only one motion to reopen
16 and must do so within 90 days of the final administrative
17 decision. Luna v. Holder.
637 F.3d 85, 95-96 (2d Cir. 2011);
18 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). Although
19 Balliu’s motion was indisputably untimely, there is no time
20 or numerical limitation if the alien establishes materially
21 “changed country conditions arising in the country of
22 nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8
23 C.F.R. § 1003.2(c)(3)(ii).
2
1 The BIA did not abuse its discretion in denying
2 Balliu’s motion to reopen. Balliu argues that the BIA erred
3 by failing to properly consider and give weight to his
4 father’s statement, the police report his father filed, and
5 a newspaper article in the record. To the contrary, the BIA
6 specifically referenced those documents in its decision, and
7 went on to find that, although the evidence supported the
8 claim that Balliu’s father had been harmed, it indicated
9 that the motivation for the attacks was criminal. See
10 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 74 (2d Cir. 2007) (harm
11 motivated by wealth is not persecution under the INA).
12 Balliu therefore essentially quarrels with the weight that
13 the BIA chose to afford to the documents, a decision that
14 lies within the BIA’s discretion. See Xiao Ji Chen v. U.S.
15 Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006).
16 Moreover, the BIA’s determination that the attacks on
17 Balliu’s father were motivated by money rather than by the
18 family’s political opinion was not “arbitrary or
19 capricious.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265
20 F.3d 83, 93 (2d Cir. 2001). As the BIA found, the police
21 report and the local news article indicated only that the
22 motive behind those events was “a criminal demand for
3
1 money.” In addition, the BIA pointed to a doctor’s report
2 relating to injuries that Balliu’s father allegedly
3 sustained in October 2008, which stated that the father
4 “refused to inform the doctor of the cause” of his injuries.
5 Indeed, the only record evidence suggesting a political
6 motive for the attacks was the father’s statement, which the
7 BIA reasonably determined was “less persuasive than these
8 other reports, which appear to be more objective.” See Jian
9 Hui Shao v. Mukasey, 546 F.3d 138, 171 (2d Cir. 2008) (“We
10 do not ourselves attempt to resolve conflicts in record
11 evidence, a task largely within the discretion of the
12 agency”); see also Xiao Ji
Chen, 471 F.3d at 342.
13 For the foregoing reasons, the petition for review is
14 DENIED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
4
