12-940

Vushaj-Cekoj v. Holder

BIA

A094 927 369

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 1st 4 day of April, two thousand thirteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 BARRINGTON D. PARKER,

9 RICHARD C. WESLEY,

10 Circuit Judges.

11 _____________________________________

12

13 VILSON VUSHAJ-CEKOJ,

14 Petitioner, 

15

16 v. 12-940

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Michael P. DiRaimondo, DiRaimondo &

24 Masi, LLP, Melville, N.Y. 

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Leslie McKay,

28 Assistant Director; Lori B. Warlick,

29 Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioner Vilson Vushaj-Cekoj, a native and citizen of

6 Albania, seeks review of a February 10, 2012, decision of

7 the BIA denying his motion to reopen his removal

8 proceedings. In re Vilson Vushaj-Cekoj, No. A094 927 369

9 (B.I.A. Feb. 10, 2012). We assume the parties’ familiarity

10 with the underlying facts and procedural history in this

11 case.

12 We review the BIA’s denial of a motion to reopen for

13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

14 (2d Cir. 2006) (per curiam). The agency may properly deny a

15 motion to reopen where the movant fails to establish a prima

16 facie case for the underlying substantive relief sought.

17 See INS v. Abudu, 485 U.S. 94, 104 (1988). The BIA may also

18 properly deny reopening where the movant fails to comply

19 with the regulatory requirements governing motions to

20 reopen. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen

21 proceedings for the purpose of submitting an application for

22 relief must be accompanied by the appropriate application

23 for relief and all supporting documentation.”) (emphasis

24 added).

2
1 Contrary to Vushaj-Cekoj’s assertion, the BIA did not

2 abuse its discretion in denying his motion for failure to

3 comply with the governing regulatory requirements because

4 his motion was not supported with a new asylum application. 

5 See 8 C.F.R. § 1003.2(c)(1). Regardless, even giving

6 Vushaj-Cekoj the benefit of the representations contained in

7 his original application, the BIA did not abuse its

8 discretion in finding that he failed to establish his prima

9 facie eligibility for asylum, withholding of removal, and

10 relief under the Convention Against Torture (“CAT”). See

11 Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008). 

12 Indeed, Vushaj-Cekoj did not assert that he had received any

13 threats since 2005, and the BIA’s previous determination

14 that he did not suffer past persecution, on the basis of his

15 minor custodial beating and receipt of anonymous threatening

16 letters, was reasonable. See Ivanishvili v. U.S. Dep’t of

17 Justice, 433 F.3d 332, 342 (2d Cir. 2006); see also Jian Qiu

18 Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011); Gui Ci Pan

19 v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006). 

20 Moreover, while Vushaj-Cekoj submitted a report from

21 Dr. Bernd Fischer, a professor and chair of history at

22 Indiana University, Fort Wayne, which opined that

3
1 Vushaj-Cekoj had good reason to fear a threat to his safety

2 should he be forced to return to Albania, the BIA reasonably

3 determined that this evidence did not reflect that any

4 individuals in Albania had expressed any interest in

5 Vushaj-Cekoj since he had left the country in 2006. See

6 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

7 Cir. 2006); see also Jian Xing Huang v. INS, 421 F.3d 125,

8 128-29 (2d Cir. 2005); Matter of M-B-A-, 23 I. & N. Dec.

9 474, 479-80 (B.I.A. 2002). As a result, the BIA did not err

10 denying Vushaj-Cekoj’s untimely motion for failure to

11 demonstrate his prima facie eligibility for relief. 

12 For the foregoing reasons, the petition for review is

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

14 removal that the Court previously granted in this petition

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

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

17 oral argument in this petition is DENIED in accordance with

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

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22

4