16-894 Xhuti v. Sessions BIA Morace, IJ A095 378 310 

### 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **6 th**  **day of April, two thousand seventeen.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **JOSÉ A. CABRANES,** 8 **BARRINGTON D. PARKER,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **EDIOLI XHUTI,** 13 Petitioner **,** 14 15 **v. 16-894** 16 **NAC** 17 **JEFFERSON B. SESSIONS III, UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Michael P. DiRaimondo, Melville, NY. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; Linda S. 26 Wernery, Assistant Director; Walter 27 Bocchini, Trial Attorney, Office of 28 Immigration Litigation, United 29 States Department of Justice, 30 Washington, DC. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Edioli Xhuti, a native and citizen of Albania, 5 seeks review of a February 24, 2016, decision of the BIA, 6 affirming an August 27, 2014, decision of an Immigration Judge 7 (“IJ”) denying Xhuti’s motion to reopen. In re Edioli Xhuti, 8 No. A095 378 310 (B.I.A. Feb. 24, 2016), aff’g No. A095 378 310 9 (Immig. Ct. N.Y. City Aug. 27, 2014). We assume the parties’ 10 familiarity with the underlying facts and procedural history 11 in this case. 12 We have reviewed both the IJ’s and the BIA’s decisions “for 13 the sake of completeness.” Wangchuck v. Dep’t of Homeland 14

Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The applicable 15 standards of review are well established. See Jian Hui Shao 16 v. Mukasey , 546 F.3d 138, 168-69 (2d Cir. 2008). 17 In his motion to reopen, Xhuti argued that worsened 18 conditions in Albania for Democratic Party members, such as 19 himself, should excuse the untimely filing of his motion and 20 the untimeliness of the asylum application he would file in 21 reopened proceedings. It is undisputed that Xhuti’s 2014 22 motion to reopen was untimely filed more than two years after 233 the IJ’s 2012 order of removal (and grant of withholding of 1 removal) became final. See 8 U.S.C. § 1229a(c)(7)(C)(i); 2 8 C.F.R. § 1003.23(b)(1). However, the time limitation for 3 filing a motion to reopen does not apply if the motion “is based 4 on changed country conditions arising in the country of 5 nationality or the country to which r emoval has been ordered, 6 if such evidence is material and was not available and would 7 not have been discovered or presented at the previous 8 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. 9 § 1003.23(b)(4)(i). 10 The agency reasonably concluded that Dr. Bernd Fischer’s 11 declaration did not demonstrate a material change in Albania 12 for Democratic Party members. In re S-Y-G-, 24 I. & N. Dec. 13 247, 253 (BIA 2007). Dr. Fischer’s 2013 declaration discusses 14 the continuation of political unrest, violence, and corruption 15 similar to that described in his 2011 affidavit, which was in 16 the record of Xhuti’s underlying proceedings. Although the 17 Socialist Party won a majority of parliamentary seats in Albania 18 in 2013, that alone does not demonstrate that Xhuti is at greater 19 risk of harm, particularly given that Dr. Fischer’s statements 20 indicate that political unrest and violence are caused by both 21 political parties and appear to continue no matter which party 22 controls the parliament. 234 Accordingly, because the agency reasonably found that 1 Xhuti did not demonstrate a material change in country 2 conditions in Albania, it did not abuse its discretion in 3 denying his motion to reopen as untimely. See 8 U.S.C. 4 § 1229a(c)(7)(C); see also In re S-Y-G- , 24 I. & N. Dec. at 253, 5 257. 6 For the foregoing reasons, the petition for review is 7 DENIED. As we have completed our rev iew, any stay of removal 8 that the Court previously granted in this petition is VACATED, 9 and any pending motion for a stay of removal in this petition 10 is DISMISSED as moot. Any pending request for oral argument 11 in this petition is DENIED in accordance with Federal Rule of 12 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 13 34.1(b). 14

FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16