Filed: Jul. 23, 2019
Latest Update: Mar. 03, 2020
Summary: 18-454, 19-954 Kadria v. Barr BIA A078 280 103 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: 18-454, 19-954 Kadria v. Barr BIA A078 280 103 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 ..
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18-454, 19-954
Kadria v. Barr
BIA
A078 280 103
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 23rd day of July, two thousand nineteen.
PRESENT:
JON O. NEWMAN,
DEBRA ANN LIVINGSTON,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
LAHIM KADRIA,
Petitioner,
18-454,
v. 19-954
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Marialaina L. Masi, Jeffrey
Chase, On the Brief; Michael P.
DiRaimondo, DiRaimondo & Masi,
PC, Bohemia, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant
Attorney General; Anthony C.
Payne, Assistant Director;
Alexander J. Lutz, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petitions for review
are DENIED.
Petitioner Lahim Kadria, a native and citizen of Albania,
seeks review of (1) a January 31, 2018 decision of the BIA
denying a motion to reconsider and reopen, and (2) an April
3, 2019 decision denying a subsequent motion to reopen, In re
Lahim Kadria, No. A078 280 103 (B.I.A. Jan. 31, 2018 & Apr.
3, 2019). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
A. Docket Number 18-454
Because this petition is timely filed only as to the
BIA’s January 2018 decision denying his motion to reconsider
and reopen, our review is limited to that decision and we may
not consider any challenge to the agency’s underlying
decisions ordering Kadria removed, denying asylum, and
denying earlier motions to reopen. See Ke Zhen Zhao v. U.S.
Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001). We
review the denial of motions to reconsider and reopen for
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abuse of discretion and any country conditions determinations
for substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d
138, 168-69, 173 (2d Cir. 2008). The BIA properly construed
Kadria’s September 2017 motion as seeking reconsideration
insofar as it challenged the most recent denial of reopening,
and as seeking reopening insofar as it sought to present new
evidence. See Ke Zhen
Zhao, 265 F.3d at 90-91. For the
reasons discussed below, the BIA did not abuse its discretion
in denying the motion under either construction.
1. Motion to Reconsider
A motion to reconsider must specify errors of fact or
law in the agency’s prior decision. See 8 U.S.C.
§ 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1); see also Ke Zhen
Zhao, 265 F.3d at 90. Kadria argued that the BIA erred in
finding that his March 2017 motion to reopen did not establish
his prima facie eligibility for relief. A movant’s failure
to establish prima facie eligibility for the underlying
relief sought is a proper basis for the BIA to deny reopening.
See INS v. Abudu,
485 U.S. 94, 104 (1988). To establish his
prima facie eligibility for asylum, Kadria relied on an expert
affidavit prepared by Dr. Bernd Fischer. The BIA did not err
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in declining to consider Dr. Fischer’s affidavit insofar as
it discussed Kadria’s claim of past persecution, which had
been denied on credibility grounds. See Paul v. Gonzales,
444 F.3d 148, 153 (2d Cir. 2006) (“[W]here an asylum applicant
does not file a timely appeal disputing the BIA’s affirmance
of the IJ’s credibility ruling, a motion to reopen does not
provide a collateral route by which the alien may challenge
the validity of the original credibility determination.”).
Further, the BIA did not violate Kadria’s due process rights
in declining to relitigate Kadria’s claim of past
persecution. See Yuen Jin v. Mukasey,
538 F.3d 143, 157 (2d
Cir. 2008) (“We hold that an alien who has already filed one
asylum application, been adjudicated removable and ordered
deported, and who has nevertheless remained in the country
illegally for several years, does not have a liberty interest
or property interest in a discretionary grant of asylum.”).
We also find no error in the BIA’s determination that
Dr. Fischer’s affidavit was not prima facie evidence of a
well-founded fear of future persecution on account of
Kadria’s membership in the Democratic Party. Kadria had to
show either a reasonable possibility that he would be singled
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out for persecution or that the country of removal has a
pattern or practice of persecuting individuals similarly
situated to him. 8 C.F.R. § 1208.13(b)(2)(iii). Aside from
discussing Kadria’s claim of persecution in the 1990s, Dr.
Fischer addressed general political conditions in Albania and
did not establish any basis to find that Kadria would be
singled out for persecution. See 8 C.F.R.
§ 1208.13(b)(2)(iii); Jian Xing Huang v. U.S. INS, 421 F.3d
125, 129 (2d Cir. 2005) (“In the absence of solid support in
the record . . . , [an applicant’s] fear is speculative at
best.”). Specifically, Dr. Fischer states that Albania
suffers from corruption and crime, that it is politically
unstable, and that political militants attack each other
physically. He discusses a few incidents of violence between
members of the Socialist and Democratic Parties, but such
isolated incidents are insufficient to show that Kadria will
be singled out for persecution or that there is a pattern or
practice of persecution of Democratic Party members. See
Jian Hui
Shao, 546 F.3d at 153, 163-65 (agreeing with the
BIA’s conclusion that isolated incidents of persecution in
country reports are insufficient to establish that an
5
applicant will be singled out for persecution or a pattern or
practice of persecution); see also In re A-M-, 23 I. & N.
Dec. 737, 741 (BIA 2005) (defining “pattern or practice” as
the “systemic or pervasive” persecution of a group). Given
Kadria’s failure to establish any error in the BIA’s
conclusion that he did not demonstrate his prima facie
eligibility for relief, the BIA did not abuse its discretion
in denying reconsideration.
2. Motion to Reopen
To the extent Kadria’s 2017 motion relied on a further
updated affidavit from Dr. Fischer, the BIA properly
construed it as a motion to reopen. See Ke Zhen Zhao, 265
F.3d at 90-91. Kadria argues that the BIA abused its
discretion in declining to consider whether that further
update established changed conditions excusing the limits on
his motion; however, the BIA assumed that Kadria established
such conditions, but again denied reopening on the ground
that Kadria failed to establish his prima facie eligibility
for relief. Given that a failure to establish prima facie
eligibility for the underlying relief sought is dispositive
of a motion to reopen, see
Abudu, 485 U.S. at 104, the BIA
6
was not required to decide whether the affidavit demonstrated
changed country conditions, see INS v. Bagamasbad, 429 U.S.
24, 25 (1976) (“As a general rule courts and agencies are not
required to make findings on issues the decision of which is
unnecessary to the results they reach.”).
In addition, for the same reasons discussed above, Dr.
Fischer’s further updated affidavit, which again asserted
that Kadria’s past persecution claim was consistent with
country conditions and generally discussed political turmoil
in Albania, did not establish Kadria’s prima facie
eligibility for relief.
3. Validity of Removal Proceedings
Kadria argues that, under the Supreme Court’s decision
in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the agency
lacked jurisdiction to commence removal proceedings against
him because his Notice to Appear (“NTA”) did not provide a
hearing date or time. This argument is foreclosed by our
decision in Banegas Gomez v. Barr,
922 F.3d 101 (2d Cir.
2019).* As set forth in Banegas Gomez, we agree with Matter
* Given our decision in Banegas Gomez, we deny the motion from
the Immigrant Rights Clinic of Washington Square Legal
Services for leave to file an amicus curiae brief.
7
of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), in which
the BIA determined that the regulation vesting jurisdiction
does not specify what information must be contained in an
NTA, nor does it require an NTA to specify the time and date
of the initial hearing, “so long as a notice of hearing
specifying this information is later sent to the alien,” 922
F.3d at 112 (quotation marks omitted). Although Kadria’s
July 2000 NTA did not specify the date and time of his hearing
in immigration court, he subsequently received adequate
notice of his hearings, at which he in fact appeared.
B. Docket Number 19-954
This petition challenges the BIA’s denial of a motion to
reopen in which the only argument raised was the Pereira
argument discussed above. Accordingly, the petition is
denied as it is foreclosed by Banegas Gomez, 2019 WL 1768914.
For the foregoing reasons, the motions for oral argument
and leave to file an amicus curiae brief and the petitions
for review are DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe
Clerk of Court
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