Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric H. Holder, Jr., is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

08-4956-ag

Duka v. Holder

BIA

A095 149 726

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 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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 20 day of January, two thousand ten. th

5

6 PRESENT:

7 JON O. NEWMAN,

8 ROBERT D. SACK,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11

12 _________________________________________

13

14 SHKELQIM DUKA,

15 Petitioner, 

16

17 v. 08-4956-ag

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,*

21 Respondent.

22 _________________________________________

23

24

25
2

1 FOR PETITIONER: Michael P. DiRaimondo, DiRaimondo &

2 Masi, LLP, Melville, New York.

3

4 FOR RESPONDENT: Michael F. Hertz, Acting Assistant

5 Attorney General; Thomas B.

6 Fatouros, Senior Litigation Counsel;

7 Lynda A. Do, Attorney, Office of

8 Immigration Litigation, United

9 States Department of Justice,

10 Washington, D.C.

11

12 UPON DUE CONSIDERATION of this petition for review of a

13 Board of Immigration Appeals (“BIA”) decision, it is hereby

14 ORDERED, ADJUDGED, AND DECREED, that the petition for review

15 is DENIED. 

16 Petitioner Shkelqim Duka, a native of the former

17 Yugoslavia and a citizen of Macedonia, seeks review of a

18 September 30, 2008 order of the BIA denying his motion to

19 reopen. In re Shkelqim Duka, No. A095 149 726 (B.I.A. Sept.

20 30, 2008). We assume the parties’ familiarity with the

21 underlying facts and procedural history in this case.

22 We review the BIA’s denial of Duka’s motion to reopen

23 for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233

24 (2d Cir. 2005) (per curiam). There is no dispute that

25 Duka’s second motion to reopen was untimely and number26 barred. See 8 C.F.R. § 1003.2(c)(2). However, there is no

27 time limitation for filing a motion to reopen if it is
3

1 “based on changed circumstances arising in the country of

2 nationality or in the country to which deportation has been

3 ordered, if such evidence is material and was not available

4 and could not have been discovered or presented at the

5 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The BIA

6 reasonably found that Duka’s motion to reopen did not

7 qualify for such an exception. 

8 In determining that Duka failed to demonstrate that

9 country conditions in Macedonia had materially worsened, the

10 BIA extensively considered the 2007 U.S. Department of

11 State’s report on Human Rights Practices in Macedonia (“2007

12 Report”) and reasonably found that the report demonstrated

13 that although discrimination against ethnic minorities

14 continued, overall ethnic tensions had decreased and the

15 Macedonian government had taken steps to improve rights for

16 minorities. Moreover, contrary to Duka’s assertion that the

17 BIA violated his due process rights by failing adequately to

18 consider a report from Dr. Bernd J. Fischer, the BIA

19 acknowledged Dr. Fischer’s report and reasonably found that

20 it did not portray a situation in Macedonia different from

21 the 2007 Report. See Jian Hui Shao v. Mukasey, 546 F.3d

22 138, 169 (2d Cir. 2008) (noting that the Court does not
4

1 “attempt to resolve conflicts in record evidence, a task

2 largely within the discretion of the agency”). Furthermore,

3 the BIA did not err in declining to credit Dr. Fischer’s

4 ultimate conclusion that there was a reasonable possibility

5 that Duka would face “persecution in the form of a threat to

6 his safety” because that conclusion was based in part on

7 Duka’s assertion that he had been detained and beaten in the

8 past – a claim that was deemed not credible in his

9 underlying proceedings. See Kaur, 413 F.3d at 234

10 (concluding that the BIA did not err in finding petitioner’s

11 evidence not material because it did not rebut the agency’s

12 underlying adverse credibility determination); see also Qin

13 Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007). 

14 Accordingly, the BIA did not abuse its discretion in

15 denying Duka’s motion to reopen. See 8 C.F.R. § 1003.2(c);

16 see also Kaur, 413 F.3d at 234. Finally, because Duka had

17 filed an untimely and number-barred motion to reopen his

18 removal proceedings, the BIA was under no obligation to

19 consider separately his eligibility for CAT relief. See

20 8 C.F.R. § 1003.2(c)(2). 
5

1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of

3 removal that the Court previously granted in this petition

4 is VACATED, and any pending motion for a stay of removal in

5 this petition is DISMISSED as moot. Any pending request for

6 oral argument in this petition is DENIED in accordance with

7 Federal Rule of Appellate Procedure 34(a)(2), and Second

8 Circuit Local Rule 34(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

12 By:___________________________