2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-30-2012

Luljeta Pellumbi;v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2779

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2779

___________

LULJETA PELLUMBI,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A075 955 156)

Immigration Judge: Honorable Annie S. Garcy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 21, 2012

Before: SCIRICA, VANASKIE and COWEN, Circuit Judges

(Filed: November 30, 2012 )

___________

OPINION OF THE COURT

___________

PER CURIAM.

Luljeta Pellumbi, a native and citizen of Albania, petitions for review of an order 

of the Board of Immigration Appeals (“BIA” or “Board”), which denied her motion to 

reopen her removal proceedings. We will deny the petition for review.
2

I.

Pellumbi entered the United States in 1997. She applied for asylum and 

withholding of removal based on her claims that she was arrested, beaten, and raped for 

her political activities. An Immigration Judge (“IJ”) denied her application in October 

1998. The BIA affirmed the IJ’s decision without opinion in June 2002. In 2005, 

Pellumbi applied for reopening to renew her application for asylum and withholding 

based on deteriorating conditions in Albania and to submit evidence that her husband, an 

Albanian and the father of their two United States citizen children, was granted asylum in 

1997. The BIA granted the motion. 

Pellumbi reapplied for asylum and withholding of removal, and included a claim 

under the Convention Against Torture (“CAT”). The IJ denied relief, finding that she 

lacked credibility, and that even if she were credible, her claims for asylum would fail

because the Department of Homeland Security (“DHS”) submitted evidence showing that 

conditions in Albania had changed. See 8 C.F.R. § 1208.13(b)(1)(i), (b)(1)(ii) (if asylum 

seeker establishes past persecution, DHS can show changed conditions to rebut 

presumption of a well-founded fear of persecution). On December 23, 2008, the BIA 

affirmed, but did not adopt the IJ’s credibility determination. Assuming Pellumbi to be 

credible, the BIA stated that she had established past persecution in Albania on account 

of her political support for the Democratic Party. However, it agreed with the IJ that the 

evidence of changed political conditions in Albania rebutted the presumption of a wellfounded fear of persecution in the future.
3

Pellumbi filed a motion to reopen on March 29, 2011, over two years after the 

BIA’s decision. Pellumbi based her motion to reopen on deteriorating conditions for 

women and children in Albania, and her fear that her daughters would be kidnapped

there. The BIA noted that Pellumbi did not show that her children must return to Albania 

with her, because they are United States citizens and her husband is a lawful permanent 

resident. Further, the BIA found that the record did not show a material change in 

Albania regarding the sex trafficking trade since Pellumbi’s 2007 hearing. 

Pellumbi also filed a motion for reissuance in May 2011, claiming that neither she 

nor her prior counsel had received the BIA’s 2008 decision. She asked that the BIA 

reissue its decision so that she could file a timely petition for review in this Court. The 

BIA reviewed the record and found that the December 2008 decision was mailed to 

Pellumbi’s counsel at the address provided by counsel. The BIA noted that there was no 

evidence in the record that prior counsel changed her address, nor did that attorney

submit an affidavit stating that she never received the decision. The BIA denied both 

motions on June 13, 2011. Pellumbi filed a timely petition for review of that decision.

II.

Because Pellumbi did not file a petition for review of the December 2008 decision, 

we may only review the Board’s June 13, 2011 decision. See Nocon v. I.N.S., 789 F.2d 

1028, 1032-33 (3d Cir. 1986) (final deportation orders and orders denying motions to 

reconsider are independently reviewable; a timely petition for review must be filed with 

respect to the specific order sought to be reviewed). We review a decision denying a 
4

motion to reopen for abuse of discretion. Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 

2001). A motion to reopen generally must be “filed within 90 days of the date of entry of 

a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). Pellumbi’s

motion was filed beyond the 90 days. However, as the BIA noted, there is an exception 

to the time requirements for motions to reopen if the movant shows “changed 

circumstances arising in the country of nationality or in the country to which deportation 

has been ordered, if such evidence is material and was not available and could not have 

been discovered or presented at the previous hearing.” 8 C.F.R. §§ 1003.2(c)(2), 

(c)(3)(ii).

Pellumbi asserts that conditions in Albania have deteriorated since her hearing, 

that political tensions have increased since the 2009 parliamentary elections, and that 

kidnappings of women and children for sex trafficking have also increased. She 

references a report by Dr. Williams, an expert on country conditions in Albania, which 

states that the 2009 elections sparked a number of political killings and civil unrest. The 

report also states that Pellumbi’s past persecution and lack of clan protection will make 

her daughters particularly vulnerable in a country that is already the world’s leading 

“exporter” of kidnapped/forced prostitutes. 

The BIA did not err in concluding that Pellumbi’s daughters do not have to return 

to Albania with her. They are United States citizens and their father is a lawful 

permanent resident. See In re A-K-, 24 I. & N. Dec. 275, 277-78 (BIA 2007) (eligibility 

for withholding of removal could not be based on fear that two United States citizen 
5

daughters would be forced to undergo female genital mutilation in Senegal); see also

Oforji v. Ashcroft, 354 F.3d 609, 615-16 (7th Cir. 2003) (same). Pellumbi recognizes 

that she cannot gain relief based solely on the possibility that her children might be 

harmed. But she argues that her case is distinguishable, because she also fears harm to 

herself. She argues that the BIA ignored her claims that she fears for her own safety. We 

disagree. The BIA held that the evidence Pellumbi submitted regarding “the trafficking 

of women and children does not reflect a material change in circumstances” from 

conditions at the time of her 2007 hearing. A.R. 4 (emphasis added). The BIA compared 

news articles and the State Department’s 2009 Human Rights Report for Albania 

submitted by Pellumbi (A.R. 96-169) with the portions of previous country reports 

submitted for the earlier proceedings (A.R. 613-721 (reports for 1996-2004), 400-01

(2006), 419-20 (2005)). The BIA reasonably found that Pellumbi’s background materials 

on Albania show that human rights abuses in Albania persist, but have not materially 

changed since her 2007 hearing. Indeed, many of the articles Pellumbi provided with her 

motion to reopen are either dated before 2007, or reference trafficking that occurred 

before 2007.1

Pellumbi argued the BIA ignored not only her fears of being a victim of sex 

trafficking, but also her fears of persecution because “the political climate in Albania has 

 

1

Pellumbi complains that the BIA failed to discuss Dr. Williams’ report. However, 

because that report focused on the harm that might befall her children, and because the 

report does not show changed country conditions since 2007, there was no need for the 

BIA to discuss the evidence.
6

become extremely volatile . . . and the government is virtually non functioning.” Pet. Br. 

at 15. Of course, “general conditions of civil unrest or chronic violence and lawlessness . 

. . generally [are] not sufficient to permit the Attorney General to grant asylum . . . .” 

Konan v. Att’y Gen., 432 F.3d 497, 506 (3d Cir. 2005) (internal citations and quotation 

omitted). Further, although Pellumbi’s motion to reopen references increasing “political 

strife and instability in the government,” A.R. 22, and her declaration in support of 

her proposed asylum application states that she will be “especially vulnerable” because 

of her past involvement with the Democratic Party, A.R. 74, we do not fault the BIA for 

failing to read into these statements a separate claim of future political persecution.2

Like the denial of a motion to reopen, the denial of a motion to reissue is reviewed 

for abuse of discretion. Jahjaga v. Att’y Gen., 512 F.3d 80, 82-83 (3d Cir. 2008). We 

will not overturn such a denial unless it was “arbitrary, irrational, or contrary to law.” 

Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). Jahjaga involved two consolidated 

appeals in which the petitioners claimed they did not receive the BIA’s final orders. The 

BIA decision in each case stated only that its prior decision had been “mailed to the 

address provided by counsel on a Notice of Entry of Appearance before the Board,” and 

that there was “no error attributable to the Board in the service of its decision to counsel.” 

 

2

Pellumbi also argues that she was deprived of due process because the BIA failed to 

make an individualized determination in her case. Relying on our decision in Zheng v. 

Attorney General, 549 F.3d 260 (3d Cir. 2008), she contends that BIA “dismissed critical 

information provided in the motion,” and failed to reach the level of analysis required by 

Zheng. As discussed above, we find that the BIA properly considered the relevant 
7

512 F.3d at 82. In Jahjaga, we noted that an alien who presents the BIA with an affidavit 

claiming that he or she did not receive a BIA decision “may well have provided enough 

evidence to rebut the presumption of mailing which attaches to the presence of a 

transmittal cover letter in the administrative record.” 512 F.3d at 86. However, we 

“decline[d] to decide that question in the first instance,” and instead remanded to the BIA 

“to determine what weight to accord to the claims of non-receipt of its opinions” 

presented by the petitioners, “and to explain the reasoning and analysis it employs in 

reaching its decision.” Id. 

Here, the BIA considered Pellumbi’s sworn declaration that she did not receive the 

decision, and that her prior attorney “informed [her] that her office never received a copy 

of the decision either” (A.R. 7-8), but declined to reissue the decision because: (1) the 

decision was properly mailed to Pellumbi’s counsel at her address provided on her Notice 

of Entry of Appearance; (2) the record showed that Pellumbi’s counsel had sent a request 

for extension of the briefing period from that same address; (3) there was no indication 

that the decision was returned as undeliverable; and (4) Pellumbi’s counsel never 

reported a change of address nor filed a request to withdraw her representation. A.R. 3. 

The BIA also noted that Pellumbi did not submit an affidavit from her prior counsel 

stating that she never received the prior decision. The BIA stated that “without a 

statement of non-receipt from the attorney to whom it was properly mailed,” it was not 

 

evidence that Pellumbi submitted. Thus, Pellumbi was not denied an individualized 

determination. See Jarbough v. Att’y Gen., 483 F.3d 184, 190 (3d Cir. 2007).
8

persuaded to reissue its decision. Id. In contrast to the decisions underlying Jahjaga, the 

BIA carefully considered Pellumbi’s affidavit, and explained its reasons for declining to 

exercise its discretion in reissuing its decision. We do not find that its decision to deny 

reissuance was “arbitrary, irrational, or contrary to law.”

For the foregoing reasons, we will deny the petition for review.