Filed: Jul. 02, 2015
Latest Update: Mar. 02, 2020
Summary: 14-1080 Gjolaj v. Lynch BIA A095 461 583 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 “SUMM
Summary: 14-1080 Gjolaj v. Lynch BIA A095 461 583 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 “SUMMA..
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14-1080
Gjolaj v. Lynch
BIA
A095 461 583
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 2nd day of July, two thousand fifteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 MARJANA GJOLAJ,
14 Petitioner,
15
16 v. 14-1080
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.*
21 _____________________________________
22
23 FOR PETITIONER: Michael P. DiRaimondo (Marialaina L.
24 Masi and Stacy A. Huber, on the
25
* Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1 brief, DiRaimondo &
2 Masi LLP, Melville, New York.
3
4 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
5 Attorney General; Ernesto H. Molina,
6 Jr., Assistant Director; Sabatino F.
7 Leo, Trial Attorney, Office of
8 Immigration Litigation, Washington,
9 D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review is
14 DENIED.
15 Petitioner Marjana Gjolaj, a native and citizen of Albania,
16 seeks review of a March 24, 2014, decision of the BIA denying
17 her motion to reopen. In re Marjana Gjolaj, No. A095 461 583
18 (B.I.A. Mar. 24, 2014). We review the BIA’s denial of a motion
19 to reopen for abuse of discretion. Kaur v. BIA, 413 F.3d 232,
20 233 (2d Cir. 2005) (per curiam). We assume the parties’
21 familiarity with the underlying facts and procedural history
22 in this case.
23 An alien seeking to reopen proceedings may file a motion
24 to reopen no later than 90 days after the date on which the final
25 administrative decision was rendered. 8 U.S.C.
26 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
27 dispute that Gjolaj’s 2014 motion to reopen is untimely because
1 the BIA issued a final order of removal in 2004. Although the
2 time limitations do not apply if the motion “is based on changed
3 country conditions arising in the country of nationality or the
4 country to which removal has been ordered, if such evidence is
5 material and was not available and would not have been
6 discovered or presented at the previous proceeding,” 8 U.S.C.
7 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii), we
8 find no error in the BIA’s conclusion that Gjolaj failed to
9 establish any material change in conditions.
10 First, Gjolaj incorrectly argues that the Immigration
11 Judge ("IJ") failed to render an adverse credibility
12 determination. In fact, the IJ explicitly denied Gjolaj’s
13 original application on credibility grounds. The BIA may deny
14 reopening where new evidence does not rebut an “adverse
15 credibility finding that provided the basis for the IJ’s denial
16 of petitioner’s underlying asylum claim.” Kaur, 413 F.3d at
17 234. Here, the alleged change—the rise to power of the
18 Socialist Party—is not material because Gjolaj was found not
19 credible with respect to her political activities.
20 Accordingly, the BIA reasonably denied her motion for failure
21 to submit material evidence of changed country conditions.
22 Id.; 8 U.S.C. § 1229a(c)(7)(C)(ii).
1 Second, Gjolaj argues that human trafficking in Albania has
2 worsened such that reopening is appropriate to allow her to
3 apply for asylum on that basis. The BIA’s conclusion that the
4 evidence shows a continuation of prior conditions is supported
5 by substantial evidence. Jian Hui Shao v. Mukasey,
546 F.3d
6 138, 169 (2d Cir. 2008). The BIA, comparing “evidence of
7 country conditions submitted with the motion to those that
8 existed at the time of the merits hearing,” In re S-Y-G, 24 I.
9 & N. Dec. 247, 253 (BIA 2007), reasonably found that human
10 trafficking has not significantly worsened since Gjolaj’s
11 merits hearing. The 2001 State Department Report, in evidence
12 during Gjolaj’s 2004 merits hearing, describes serious problems
13 with human trafficking similar to those contained in the 2013
14 State Department Report. The 2001 Report states that Albania
15 had recently passed its first laws aimed at trafficking. In
16 2010, however, “[t]he government continued to improve its
17 capacity to identify, protect, and reintegrate trafficking
18 victims.” U.S. Dep't of State, Trafficking in Persons Report
19 2010 -- Albania, 14 June 2010, available at
20 http://www.unhcr.org/refworld/decid/4c18840f20.html (last
21 visited Apr. 13, 2015). In sum, the evidence shows, at most,
22 a continuation of the conditions present at Gjolaj’s merits
1 hearing; therefore, the BIA’s finding that human trafficking
2 had not worsened is supported by substantial evidence. Jian
3 Hui
Shao, 546 F.3d at 169.
4 Finally, contrary to Gjolaj’s argument, the BIA gave
5 reasonable consideration to the evidence in the record. We
6 “presume that [the agency] has taken into account all of the
7 evidence before [it], unless the record compellingly suggests
8 otherwise.” Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d
9 315, 337 n.17 (2d Cir. 2006). The agency is not required to
10 “expressly parse or refute on the record each individual
11 argument or piece of evidence offered.” Wei Guang Wang v. BIA,
12
437 F.3d 270, 275 (2d Cir. 2006) (internal quotation marks
13 omitted). Here, “the record [does not] compellingly
14 suggest[]” that the BIA ignored Gjolaj’s evidence, but instead
15 suggests that the agency gave thorough consideration,
16 explicitly addressing State Department reports and the expert
17 affidavit. Xiao Ji
Chen, 471 F.3d at 337 n.17.
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of removal
20 that the Court previously granted in this petition is VACATED,
21 and any pending motion for a stay of removal in this petition
22 is DENIED as moot. Any pending request for oral argument in
1 this petition is DENIED in accordance with Federal Rule of
2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
3 34.1(b).
4 FOR THE COURT:
5 Catherine O=Hagan Wolfe, Clerk
