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 CIRCU IT 

# SUM MARY ORDER

RU L INGS 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 24 252 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 1 2 UPON DUE CONSIDERATION of this petition for review of a 1 3 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 4 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 5 is DENIED. 1 6 Petitioner Shkelqim Duka, a native of the former 1 7 Yugoslavia and a citizen of Macedonia, seeks review of a 1 8 September 30, 2008 order of the BIA denying his motion to 1 9 reopen. In re Shkelqim Duka , No. A095 149 726 (B.I.A. Sept. 2 0 30, 2008). We assume the parties’ familiarity with the 2 1 underlying facts and procedural history in this case. 2 2 We review the BIA’s denial of Duka’s motion to reopen 2 3 for abuse of discretion. See Kaur v. BIA , 413 F.3d 232, 233 2 4 (2d Cir. 2005) (per curiam). There is no dispute that 2 5 Duka’s second motion to reopen was untimely and number2 6 barred. See 8 C.F.R. § 1003.2(c)(2). However, there is no 2 7 time limitation for filing a motion to reopen if it is3 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 1 0 BIA extensively considered the 2007 U.S. Department of 1 1 State’s report on Human Rights Practices in Macedonia (“2007 1 2 Report”) and reasonably found that the report demonstrated 1 3 that although discrimination against ethnic minorities 1 4 continued, overall ethnic tensions had decreased and the 1 5 Macedonian government had taken steps to improve rights for 1 6 minorities. Moreover, contrary to Duka’s assertion that the 1 7 BIA violated his due process rights by failing adequately to 1 8 consider a report from Dr. Bernd J. Fischer, the BIA 1 9 acknowledged Dr. Fischer’s report and reasonably found that 2 0 it did not portray a situation in Macedonia different from 2 1 the 2007 Report. See Jian Hui Shao v. Mukasey , 546 F.3d 2 2 138, 169 (2d Cir. 2008) (noting that the Court does not4 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 1 0 (concluding that the BIA did not err in finding petitioner’s 1 1 evidence not material because it did not rebut the agency’s 1 2 underlying adverse credibility determination); see also Qin 13 Wen Zheng v. Gonzales , 500 F.3d 143, 147 (2d Cir. 2007). 1 4 Accordingly, the BIA did not abuse its discretion in 1 5 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 1 7 filed an untimely and number-barred motion to reopen his 1 8 removal proceedings, the BIA was under no obligation to 1 9 consider separately his eligibility for CAT relief. See 2 0 8 C.F.R. § 1003.2(c)(2).5

For the foregoing reasons, the petition for review is 1 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: 1 0 Catherine O’Hagan Wolfe, Clerk 11 1 2 By:___________________________