09-17 32-ag

Pllumbaj v. Holder BIA A095 150 229 A095 150 230 A095 150 231 A095 150 232 

### UNITED STATES COURT OF AP PEALS FOR THE SECOND CIRCU IT 

# SUM MARY ORDER

RU LINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FI L ED 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 7 day of May, two thousand ten. th 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 DEBRA ANN LIVINGSTON, 9 GERARD E. LYNCH, 10 Circuit Judges . 11

______________________________________ 12 13 FRAN ZEF PLLUMBAJ, ANITA PLLUMBAJ, 14 ALMARINA PLLUMBAJ, ALDO PLLUMBAJ, 15 Petitioners , 16 09-1732-ag 17 v. NAC 18 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, ET. AL., 21 Respondents . 22

______________________________________ 23 24 FOR PETITIONERS: Andrew P. Johnson; Lawrence Spivak, 25 New York, New York. 26 27 FOR RESPONDENTS: Tony West, Assistant Attorney 28 General; Michelle Gorden Latour, 29 Assistant Director; Tracie N. Jones,2 1 Trial Attorney, Office of 2 Immigration Litigation, Civil 3 Division, United States Department 4 of Justice, Washington, D.C. 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 1 0 The Petitioners, Fran Zef Pllumbaj, Anita Pllumbaj, 1 1 Almarina Pllumbaj, and Aldo Pllumbaj, natives and citizens 1 2 of Albania, seek review of an April 17, 2009, order of the 1 3 BIA denying their motion to reopen their removal 1 4 proceedings. In re Pllumbaj , No. A 095 150 229/230/231/232 1 5 (B.I.A. Apr. 17, 2009). We assume the parties’ familiarity 1 6 with the underlying facts and procedural history of the 1 7 case. 1 8 We review the BIA’s denial of a motion to reopen for 1 9 abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 2 0 (2d Cir. 2006). When the BIA considers relevant evidence of 2 1 country conditions in evaluating a motion to reopen, we 2 2 review the BIA’s factual findings under the substantial 2 3 evidence standard. See Jian Hui Shao v. Mukasey , 546 F.3d 2 4 138, 169 (2d Cir. 2008). 2 5 An alien may only file one motion to reopen and must do3 1 so within 90 days of the final administrative decision. 2 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). It is 3 indisputable that the Petitioners’ motion to reopen was 4 untimely and number-barred. These limitations do not apply, 5 however, if the alien establishes materially changed 6 circumstances arising in the country of nationality. 7 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). 8 In denying the Petitioners’ motion to reopen, the BIA 9 concluded that, even assuming they demonstrated changed 1 0 country conditions, reopening was unwarranted because they 1 1 failed to establish “that any of the harm [they] experienced 1 2 was on account of a protected ground, as opposed to criminal 1 3 activity.” In other words, the BIA found that the 1 4 Petitioners had failed to establish their prima facie 1 5 eligibility for relief. See INS v. Abudu , 485 U.S. 94, 104- 1 6 05 (1988). We find the Petitioners’ assertion that a threat 1 7 issued against Fran’s brother by the police in an unrelated 1 8 matter five years after their mother’s death was 1 9 insufficient to compel the conclusion that she was killed 2 0 for political reasons. See Siewe v. Gonzales , 480 F.3d 160, 2 1 167 (2d Cir. 2007) (“Where there are two permissible views 2 2 of the evidence, the factfinder’s choice between them cannot4 1 be clearly erroneous.”). Evidence of Almarina’s rape, 2 though distressing, similarly does not suggest error in the 3 BIA’s decision. 4 The Petitioners further assert that they established 5 the requisite nexus because they demonstrated that they were 6 persecuted on account of their membership in a particular 7 social group comprised of “[family members] of a soldier who 8 opposed official abuse of civilians.” However, the BIA was 9 under no obligation to consider this newly-minted legal 1 0 theory in adjudicating an untimely motion to reopen. See 1 1 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Matter of O-S-G- , 24 1 2 I. & N. Dec. 56, 58 (BIA 2006) (“A motion to reconsider 1 3 based on a legal argument that could have been raised 1 4 earlier in the proceedings will be denied.”). 1 5 Although the Petitioners alternatively challenge the 1 6 Immigration Judge’s initial determination that they failed 1 7 to establish a nexus between the incidents they described 1 8 and a protected ground, we are “precluded from passing on 1 9 the merits of the underlying [removal] proceedings” in 2 0 considering the BIA’s denial of the Petitioners’ motion to 2 1 reopen. Ke Zhen Zhao v. U.S. Dep’t of Justice , 265 F.3d 83, 2 2 90 (2d Cir. 2001).5 1 Finally, although the Petitioners argue that the BIA 2 erred by failing to address whether they are eligible for 3 humanitarian asylum, such relief would only have been 4 available had the the BIA reopened their proceedings. See 8 C.F.R. §§ 1003.2(c)(1); 1208.13(b)(1)(iii). 5 6 For the foregoing reasons, the petition for review is 7 DENIED. As we have completed our review, any stay of 8 removal that the Court previously granted in this petition 9 is VACATED, and any pending motion for a stay of removal in 1 0 this petition is DISMISSED as moot. Any pending request for 1 1 oral argument in this petition is DENIED in accordance with 1 2 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 3 Circuit Local Rule 34.1(b). 1 4 FOR THE COURT: 1 5 Catherine O’Hagan Wolfe, Clerk 16 17 18