Filed: Nov. 29, 2011
Latest Update: Feb. 22, 2020
Summary: 11-1191-ag Ndoci v. Holder BIA A098 690 462 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
Summary: 11-1191-ag Ndoci v. Holder BIA A098 690 462 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 “SU..
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11-1191-ag
Ndoci v. Holder
BIA
A098 690 462
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 29th day of November, two thousand eleven.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 AGRON NDOCI,
14 Petitioner,
15
16 v. 11-1191-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Saher J. Macarius, Framingham,
24 Massachusetts.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Richard M. Evans, Assistant
28 Director; Christina Bechak
29 Parascandola, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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
4 is DISMISSED in part and DENIED in part.
5 Agron Ndoci, a native and citizen of Albania, seeks
6 review of a March 17, 2011 decision of the BIA denying his
7 motion to reopen. In re Agron Ndoci, No. A098 690 462
8 (B.I.A. Mar. 17, 2010). We assume the parties’ familiarity
9 with the underlying facts and procedural history of this
10 case.
11 We review the BIA’s denial of Ndoci’s motion to reopen
12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). Ndoci’s motion was untimely because it was
14 filed more than three years after the agency’s final order
15 of removal. See 8 U.S.C. § 1229a(c)(7)(C)(I). There is no
16 time limitation for filing a motion to reopen if it is
17 “based on changed country conditions arising in the country
18 of nationality or the country to which removal has been
19 ordered, if such evidence is material and was not available
20 and would not have been discovered or presented at the
21 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). The
22 BIA reasonably concluded that Ndoci’s motion to reopen did
23 not meet any of the exceptions to the applicable time
24 limitations.
2
1 Ndoci argues that the BIA failed to consider new and
2 material evidence of changed conditions in Albania. We
3 reject his argument, as the BIA’s decision expressly
4 referenced that evidence, see Jian Hui Shao v. Mukasey, 546
5 F.3d 138, 169 (2d Cir. 2008); Xiao Ji Chen v. U.S. Dep’t of
6 Justice,
471 F.3d 315, 337 n.17 (2d Cir. 2006), and the BIA
7 properly exercised its discretion in determining that it was
8 not material to Ndoci’s claim for relief. For example, the
9 evidence Ndoci submitted describing an alleged blood feud
10 was not material because it described violence between two
11 families rather than politically motivated or targeted
12 violence. See Melgar de Torres v. Reno,
191 F.3d 307, 314
13 (2d Cir. 1999). In any event, there was no evidence that
14 the Albanian government was unable or unwilling to protect
15 him from the blood feud. See Ivanishvili v. U.S. Dep’t of
16 Justice,
433 F.3d 332, 342 (2d Cir. 2006).
17 The BIA also did not abuse its discretion by relying on
18 the underlying adverse credibility determination to decline
19 to credit evidence that depended upon Ndoci’s veracity, such
20 as the unsworn statement that purported to be from his
21 brother. See Qin Wen Zheng v. Gonzales,
500 F.3d 143, 147-
22 48 (2d Cir 2007). As that discredited evidence provided the
23 only support for Ndoci’s assertion that Albanian authorities
3
1 had threatened to kill him because of his support for an
2 opposition party in Albania, the BIA did not err in finding
3 that he failed to demonstrate material changed country
4 conditions. See id.
5 Ndoci also moved to reopen to apply for adjustment of
6 status. However, eligibility for adjustment of status is
7 not an exception to the applicable time limitation on
8 motions to reopen. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.
9 § 1003.2(c)(3); see also Matter of Yauri, 25 I. & N. Dec.
10 103, 105 (BIA 2009). Even if we were to construe his motion
11 as one invoking the BIA’s authority to reopen his
12 proceedings sua sponte, we would lack jurisdiction to review
13 the BIA’s discretionary decision not to exercise that
14 authority. See Mahmood v. Holder,
570 F.3d 466, 469 (2d Cir.
15 2009); Ali v. Gonzales,
448 F.3d 515, 517 (2d Cir. 2006).
16 For the foregoing reasons, the petition for review is
17 DISMISSED in part and DENIED in part. As we have completed
18 our review, any stay of removal that the Court previously
19 granted in this petition is VACATED, and any pending motion
20 for a stay of removal in this petition is DISMISSED as moot.
21 Any pending request for oral argument in this petition is
4
1 DENIED in accordance with Federal Rule of Appellate
2 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
5
