Filed: Jun. 16, 2010
Latest Update: Feb. 22, 2020
Summary: 09-4216-ag Ajdin v. Holder BIA A070 894 856 A075 314 837 A075 314 838 A075 314 839 A075 314 840 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 APPE
Summary: 09-4216-ag Ajdin v. Holder BIA A070 894 856 A075 314 837 A075 314 838 A075 314 839 A075 314 840 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 APPEN..
More
09-4216-ag
Ajdin v. Holder
BIA
A070 894 856
A075 314 837
A075 314 838
A075 314 839
A075 314 840
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 16 th day of June, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 ARIF AJDIN, FATIMA AJDINOVSKA, MIRSADA
14 AJDINOVSKA, SABAN AJDINOVSKA, ALMA
15 AJDINOVSKA,
16 Petitioners,
17
18 v. 09-4216-ag
19 NAC
20
21 ERIC H. HOLDER, Jr., U.S. ATTORNEY
22 GENERAL,
23 Respondent.
24 _______________________________________
25
26 FOR PETITIONERS: Michael P. Diraimondo, Melville, New
27 York.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General, Richard M. Evans, Assistant
3 Director, Sada Manickam, Attorney,
4 Office of Immigration Litigation,
5 Civil Division, United States
6 Department of Justice, Washington,
7 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioners, all natives of the former Yugoslavia and
6 citizens of Macedonia, seek review of a September 30, 2009,
7 order of the BIA denying their motion to reopen their
8 removal proceedings. In re Ajdin, et. al., Nos. A070 894
9 856, A075 314 837-840 (B.I.A. Sept. 30, 2009). We assume
10 the parties’ familiarity with the underlying facts and
11 procedural history of the case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
14 (2d Cir. 2006). An alien who has been ordered removed may
15 file one motion to reopen, but must do so within 90 days of
16 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
17 Here, the BIA properly denied Petitioners’ motion to reopen
18 as untimely and number-barred because they filed it almost
2
1 seven years after their October 2001 final order of removal
2 and it was the third such motion they had filed. See id.;
3 8 C.F.R. § 1003.2(c)(2).
4 Although the time and numerical limits may be excused
5 when the movant alleges changed country conditions, 8 U.S.C.
6 § 1229a(c)(7)(C)(ii), the BIA reasonably found that the
7 evidence Petitioners submitted merely “reflect[ed] a
8 continuation of circumstances substantially similar to those
9 that existed at the time of [their] hearing.” Indeed, much
10 of the evidence Petitioners included with their motion was
11 previously available or reflected ongoing civil strife in
12 Macedonia rather than a material change. Therefore,
13 substantial evidence supports the BIA’s determination that
14 Petitioners failed to establish changed country conditions.
15 See 8 C.F.R. § 1003.2(c)(2), (c)(3)(ii); see also Jian Hui
16 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
17 Furthermore, a reasonable fact-finder would not be
18 compelled to conclude that the BIA ignored any material
19 evidence that Petitioners submitted. Wei Guang Wang v. BIA,
20
437 F.3d 270, 275 (2d Cir. 2006). To the contrary, it is
21 apparent that the BIA considered Petitioners’ evidence, and
22 made reasonable findings based on the record. See Xiao Ji
3
1 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d
2 Cir. 2006).
3 Finally, there is no merit to Petitioners’ argument
4 that the BIA’s decision was arbitrary and capricious because
5 it contradicted its findings in another case. First, the
6 case Petitioners cite was unpublished and, thus, not binding
7 on the BIA. See Ajdin v. BCIS,
437 F.3d 261, 264-65 (2d
8 Cir. 2006). Second, unlike in that case, Petitioners here
9 do not assert that the agency applied the wrong legal
10 standard.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
4
