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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 1 st** **day of April, two thousand thirteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **BARRINGTON D. PARKER,** 8 **RICHARD C. WESLEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **VILSON VUSHAJ-CEKOJ,** 13 Petitioner**,** 14 15 **v. 12-940** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Michael P. DiRaimondo, DiRaimondo &** 23 **Masi, LLP, Melville, N.Y.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Leslie McKay,** 27 **Assistant Director; Lori B. Warlick,** 28 **Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 32UPON 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 3 is DENIED. 4 Petitioner Vilson Vushaj-Cekoj, a native and citizen of 5 Albania, seeks review of a February 10, 2012, decision of 6 the BIA denying his motion to reopen his removal 7 proceedings. In re Vilson Vushaj-Cekoj, No. A094 927 369 8 (B.I.A. Feb. 10, 2012). We assume the parties’ familiarity 9 with the underlying facts and procedural history in this 10

case. 11 We review the BIA’s denial of a motion to reopen for 12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 13 (2d Cir. 2006) (per curiam). The agency may properly deny a 14 motion to reopen where the movant fails to establish a prima 15 facie case for the underlying substantive relief sought. 16 See INS v. Abudu, 485 U.S. 94, 104 (1988). The BIA may also 17 properly deny reopening where the movant fails to comply 18 with the regulatory requirements governing motions to 19

reopen. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen 20 proceedings for the purpose of submitting an application for 21 relief must be accompanied by the appropriate application 22 for relief and all supporting documentation.”) (emphasis 23 added). 24 2Contrary to Vushaj-Cekoj’s assertion, the BIA did not 1 abuse its discretion in denying his motion for failure to 2 comply with the governing regulatory requirements because 3 his motion was not supported with a new asylum application. 4
See 8 C.F.R. § 1003.2(c)(1). Regardless, even giving 5 Vushaj-Cekoj the benefit of the representations contained in 6 his original application, the BIA did not abuse its 7 discretion in finding that he failed to establish his prima 8 facie eligibility for asylum, withholding of removal, and 9 relief under the Convention Against Torture (“CAT”). See 10 Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008). 11 Indeed, Vushaj-Cekoj did not assert that he had received any 12 threats since 2005, and the BIA’s previous determination 13 that he did not suffer past persecution, on the basis of his 14 minor custodial beating and receipt of anonymous threatening 15 letters, was reasonable. See Ivanishvili v. U.S. Dep’t of 16 Justice , 433 F.3d 332, 342 (2d Cir. 2006); see also Jian Qiu 17 Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011); Gui Ci Pan 18 v. U.S. Att’y Gen. , 449 F.3d 408, 412 (2d Cir. 2006). 19 Moreover, while Vushaj-Cekoj submitted a report from 20 Dr. Bernd Fischer, a professor and chair of history at 21 Indiana University, Fort Wayne, which opined that 22

3Vushaj-Cekoj had good reason to fear a threat to his safety 1 should he be forced to return to Albania, the BIA reasonably 2 determined that this evidence did not reflect that any 3 individuals in Albania had expressed any interest in 4 Vushaj-Cekoj since he had left the country in 2006.See 5 Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 342 (2d 6 Cir. 2006); see also Jian Xing Huang v. INS, 421 F.3d 125, 7 128-29 (2d Cir. 2005); Matter of M-B-A- , 23 I. & N. Dec. 8 474, 479-80 (B.I.A. 2002). As a result, the BIA did not err 9 denying Vushaj-Cekoj’s untimely motion for failure to 10 demonstrate his prima facie eligibility for relief. 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any stay of 13 removal that the Court previously granted in this petition 14 is VACATED, and any pending motion for a stay of removal in 15 this petition is DISMISSED as moot. Any pending request for 16 oral argument in this petition is DENIED in accordance with 17 Federal Rule of Appellate Procedure 34(a)(2), and Second 18 Circuit Local Rule 34.1(b). 19
FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22

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