Filed: May 09, 2019
Latest Update: Mar. 03, 2020
Summary: 11-3980 Radoncic v. Barr BIA A073 033 467 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 “SUM
Summary: 11-3980 Radoncic v. Barr BIA A073 033 467 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..
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11-3980
Radoncic v. Barr
BIA
A073 033 467
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 9th day of May, two thousand nineteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 RICHARD J. SULLIVAN,
10 Circuit Judges.
11 _____________________________________
12
13 HAJRAN RADONCIC,
14 Petitioner,
15
16 v. 11-3980
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Charles Christophe, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Briena L.
27 Strippoli, Senior Litigation
28 Counsel; Matthew B. George, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
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 DENIED.
5 Petitioner Hajran Radoncic, a native of the former
6 Yugoslavia and citizen of Montenegro, seeks review of a
7 September 13, 2011, decision of the BIA denying his motion to
8 reopen his removal proceedings. In re Hajran Radoncic, No.
9 A 073 033 467 (B.I.A. Sept. 13, 2011). We assume the parties’
10 familiarity with the underlying facts, procedural history in
11 this case, and issues on appeal.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion but review any finding regarding changed
14 country conditions for substantial evidence. See Jian Hui
15 Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).
16 Radoncic does not dispute that his motion to reopen filed in
17 2011 was untimely because the BIA affirmed his removal order
18 in 2002. See 8 U.S.C. § 1229a(c)(7)(C)(i) (90-day deadline
19 for filing motion to reopen); 8 C.F.R. § 1003.2(c)(2) (same).
20 However, the time limitation for filing a motion to reopen
21 does not apply if reopening is sought to apply for asylum and
22 the motion is “based on changed country conditions arising in
23 the country of nationality or the country to which removal
2
1 has been ordered, if such evidence is material and was not
2 available and would not have been discovered or presented at
3 the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii);
4 see also 8 C.F.R. § 1003.2(c)(3)(ii).
5 The BIA did not abuse its discretion in denying
6 reopening. Radoncic’s motion to reopen did not identify
7 specific grounds for his fear of persecution but referenced
8 his original asylum application, in which he alleged past
9 persecution and a fear of future persecution on account of
10 his Albanian ethnicity, Muslim religion, anti-communist
11 beliefs, and refusal to serve in the army. Although the new
12 articles submitted by Radoncic with his motion vaguely
13 described human rights violations, discrimination,
14 politically motivated violence, and organized crime in
15 Montenegro, they did not pertain to the grounds he alleged as
16 the basis for his fear, nor did they offer a basis for
17 determining if circumstances had changed. Accordingly,
18 Radoncic’s new evidence was not material. See Lecaj v.
19 Holder, 616 F.3d 111, 117 (2d Cir. 2010) (noting that evidence
20 reflecting “ongoing police abuses” in Montenegro was
21 irrelevant where evidence did not “link those abuses” to the
22 grounds for the asylum claim).
23 Moreover, the BIA acted within its discretion in
3
1 concluding that Radoncic failed to address, and the evidence
2 failed to rebut, the adverse credibility determination
3 underlying the denial of his original asylum application.
4 See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (holding
5 that the BIA properly denied the petitioner’s motion to reopen
6 where its order “clearly explained that the evidence
7 submitted by petitioner in support of her motion was not
8 ‘material’ because it did not rebut the adverse credibility
9 finding that provided the basis for the IJ’s denial of
10 petitioner’s underlying asylum application”).
11 The BIA therefore did not abuse its discretion by denying
12 the motion as untimely because Radoncic failed to satisfy the
13 only available exception to the limitations period. See 8
14 U.S.C. § 1229a(c)(7)(C)(ii). As such, contrary to his
15 argument, the BIA was not required to address his prima facie
16 eligibility for asylum relief. See INS v. Abudu,
485 U.S.
17 94, 104-05 (1988) (observing that the agency may deny an
18 untimely motion to reopen for failure to demonstrate material
19 change in conditions or prima facie eligibility for the
20 substantive relief sought); INS v. Bagamasbad,
429 U.S. 24,
21 25 (1976) (“As a general rule courts and agencies are not
22 required to make findings on issues the decision of which is
23 unnecessary to the results they reach.”).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
5
