10-2425-ag
    Jakaj v. Holder
                                                                                  BIA
                                                                             Videla, IJ
                                                                          A074 855 359


                       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 12th day of April, two thousand twelve.

    PRESENT:
             DENNIS JACOBS,
                  Chief Judge,
             ROSEMARY S. POOLER,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _______________________________________

    MIRELLA JAKAJ,
             Petitioner,
                      v.                                   10-2425-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________
    FOR PETITIONER:         Mary Elizabeth Delli-Pizzi, Babylon
                            Village, New York.
    FOR RESPONDENT:         Tony West, Assistant Attorney General,
                            Civil Division; Michael P. Lindemann,
                            Assistant Director, Office of Immigration
                            Litigation; Lyle D. Jentzer, Civil
                            Division, United States Department of
                            Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Mirella Jakaj, a native and citizen of Albania, seeks

review of a June 15, 2010, order of the BIA affirming the

July 31, 2008, decision of Immigration Judge (“IJ”) Gabriel

C. Videla denying her motion to reopen.     In re Mirella

Jakaj, No. A074 855 359 (B.I.A. June 15, 2010), aff’g No.

A074 855 359 (Immig. Ct. N.Y. City July 31, 2008).     We

assume the parties’ familiarity with the underlying facts

and procedural history of the case.    We review the agency’s

denial of a motion to reopen for abuse of discretion.       Kaur

v. BIA, 

, 233 (2d Cir. 2005) (per curiam).

    Because Jakaj’s motion to reopen was untimely, she was

required to establish changed country conditions to except

it from the time limit or that the time limit should be

equitably tolled because she received ineffective assistance

of counsel.   See 8 U.S.C. § 1229a(c)(7)(C); Cekic v. INS,

, 170 (2d Cir. 2006).     The agency found that she

established neither, and accordingly denied her motion as

untimely.


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    Jakaj argues that the agency abused its discretion in

failing to consider her evidence about conditions in Albania

and concluding that she did not establish changed country

conditions.     This argument is unavailing because the record

does not compel the conclusion that the agency did not

consider Jakaj’s evidence.     See Xiao Ji Chen v. U.S. Dep’t

of Justice, 

, 338 (2d Cir. 2006) (providing that

this Court will “presume that [the agency] has taken into

account all of the evidence before [it], unless the record

compellingly suggests otherwise”).     Indeed, the agency

explicitly discussed the key parts of Jakaj’s evidence of

changed country conditions: her evidence about general

conditions in Albania and her claim that her uncle was

murdered.     While the agency did not explicitly address

Jakaj’s evidence that in 1993 masked men looking for her

confronted her family in Albania or that in 2008 a family

member was attacked by masked men, that evidence did not

show a material change in country conditions, as the 1993

incident occurred before Jakaj’s initial removal hearing and

Jakaj did not present evidence establishing the identity or

motives of the 2008 attackers, or why that incident

established a change.     See Matter of S-Y-G-, 24 I. & N. Dec.


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247, 253 (BIA 2007) (explaining that in evaluating whether

an applicant has established changed country conditions, the

agency “compare[s] the evidence of country conditions

submitted with the motion to those that existed at the time

of the merits hearing below.”).

    Having considered her evidence, the agency did not

abuse its discretion in finding that Jakaj did not establish

changed country conditions.     When Jakaj first applied for

asylum in 1997 she asserted that the Socialist Party killed

and threatened its opponents.       As the agency reasonably

concluded, any evidence that the Socialist Party continued

to perpetrate political violence did not show a change in

country conditions, but at most that conditions had not

changed despite the 2005 election following which the

Socialist Party lost power.     As the agency concluded, the

murder of Jakaj’s uncle in 2004, though regrettable,

established only the continued persecution of her family

(while the Socialist Party was in power), not a change in

conditions in Albania.

    Jakaj also argues that the agency erred in failing to

reopen her proceedings based on her allegation of

ineffective assistance of counsel.       However, because Jakaj’s


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motion to reopen was filed nearly ten years after her

initial removal order, she was required to show that she

“‘exercised due diligence in pursuing the case’” in order to

toll the time limits on motions to reopen.     See 

(quoting Iavorski v. INS, 

, 135 (2d

Cir. 2000)).   The agency did not abuse its discretion in

finding that she did not meet this burden because Jakaj

submitted no evidence that she pursued her case in any way

between 1998 and 2008.   

was not deprived of due process because

she had an opportunity to present her evidence to the IJ and

BIA in her motion to reopen and the agency did not err in

denying that motion as untimely.     See 8 U.S.C.

§ 1229a(c)(7)(C); Li Hua Lin v. U.S. Dep’t of Justice, 

, 104-05 (2d Cir. 2006) (noting that due process

requires that an applicant receive “a full and fair

opportunity to present her claims”).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.



                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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