In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1002

AGRON KUCANA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

On Remand from the

Supreme Court of the United States

DECIDED MAY 4, 2010

Before EASTERBROOK, Chief Judge, and CUDAHY and

RIPPLE, Circuit Judges.

EASTERBROOK, Chief Judge. The Supreme Court remanded this proceeding to us for decision on the merits

after holding that 8 U.S.C. §1252(a)(2)(B) does not affect

judicial review of situations in which immigration officials’ discretion is specified by regulation rather than

statute. Kucana v. Holder, 130 S. Ct. 827 (2010). Our original opinion, 533 F.3d 534 (7th Cir. 2008), had held that
2 No. 07-1002

a decision by the Board of Immigration Appeals declining

to reopen a removal proceeding may be reviewed only to

determine whether the Board misunderstood a regulation, a statute, or the Constitution. 8 U.S.C. §1252(a)(2)(D).

The Justices concluded that a court of appeals also may

set aside a decision in which the Board has abused

its discretion in applying the law to the facts.

Agron Kucana contends that the Board abused its

discretion in two ways: by not discussing an affidavit

submitted in support of the motion to reopen, and by

disregarding his eligibility for adjustment of status. Our

2008 opinion understood the second of these arguments

to be a legal one and rejected it as forfeited: Kucana

did not make such an argument to the Board, which

is not required to consider possibilities never presented

for decision. 533 F.3d at 538–39. It is unnecessary for us

to revisit that subject. The only remaining question concerns the Board’s decision not to mention the affidavit.

Kucana, a citizen of Albania, entered the United States

as a business visitor in 1995 and did not leave when his

visa expired. He applied for asylum in 1996. When he

did not appear at the hearing in 1997, he was ordered

removed in absentia. Six days later he filed a motion to

reopen, contending that he had overslept. An immigration judge denied that motion, and in 2002 the Board of

Immigration Appeals affirmed. Kucana did not seek

judicial review—nor did he comply with the order to

depart. In 2006 Kucana filed another motion to reopen.

Kucana, who describes himself as a supporter of democracy and free markets, contended that holders of these
No. 07-1002 3

views are at risk of beatings and murder in Albania. The

immigration judge denied this motion, and on appeal

the Board held that the IJ lacked jurisdiction, because

successive motions to reopen must be filed directly

with the Board itself.

Treating Kucana’s appellate papers as a second motion

to reopen, the Board denied that relief because conditions

in Albania have not taken a turn for the worse since

2002. That is the right legal question: reopening in an

asylum case depends on proof of “changed country

conditions arising in the country of nationality or the

country to which removal has been ordered, if such

evidence is material and was not available and would not

have been discovered or presented at the previous proceeding.” 8 U.S.C. §1229a(c)(7)(C)(ii). The Board observed

that the State Department’s 2005 country report for

Albania describes it as a stable and peaceful parliamentary democracy. More recently Albania has applied

for membership in the European Union, and it joined

NATO in 2009. The 2009 country report concludes that

Albania is a democratic nation that generally respects

human rights and protects the freedom of political dissent. The Democratic Party has been in power since 2005,

and Kucana, who describes himself as an adherent to that

party (and one of its employees between 1992 and 1994),

should not be in fear today on account of his politics.

Kucana argues in this court that the Board abused its

discretion because it did not mention Bernd Fischer’s

affidavit. Professor Fischer narrates Albania’s history of

dictatorship and repression until the fall of the com-
4 No. 07-1002

munist regime in 1992. Disorder followed, with infighting

and corruption in government, and frequent brutality

by the police and unchecked criminal gangs. The

affidavit’s picture is one of a country in turmoil where

no one was safe. But the key word in this description is

“was.” The affidavit is a historical narrative. It does not

evaluate the risks (if any) that Kucana would have encountered in the Albania of 2006, nor does it conclude

that Albania took a turn for the worse between 2002,

when the Board denied Kucana’s first motion to

reopen, and 2006, when he filed his second. To the contrary, Prof. Fischer describes improvements in Albania’s

human-rights record.

Fischer deems these improvements inadequate and

notes remaining deficiencies. (The State Department also

finds some shortcomings in Albania’s efforts to protect

political dissidents from private violence and misconduct

by local police, though its view is more optimistic than

Fischer’s.) But to justify reopening Kucana needed to

show that country conditions had deteriorated after

2002 in a way that increased the risks he would face in his

native land. Fischer’s affidavit did not provide any evidence on that score. So the Board was entitled to disregard it—not because the Board automatically may prefer

the State Department’s views over those of other evaluators (it can’t), but because Fischer’s affidavit simply is not

material.

Almost everything Fischer said could have been presented in 1997 (when Kucana first moved for reopening),

or 2002 (when the Board made its decision on that mo-
No. 07-1002 5

tion). Only evidence that could not have been presented

earlier supports a motion to reopen, see §1229a(c)(7)(C)(ii)

and 8 C.F.R. §1003.2(c)(1), and then only to show that

risk has increased because of changes in country conditions.

Kucana’s memorandum on remand from the Supreme

Court all but concedes that the argument based on the

Board’s failure to mention Fischer’s irrelevant affidavit is

going nowhere. He asks us to call for a new round of

briefs, and hold another oral argument, so that he can

advance a different contention: that the Democratic Party

comprises antagonistic factions, and that he has angered

the dominant faction by public criticism of its conduct.

Our authority is limited, however, to review of the

Board’s disposition. We must decide whether the BIA

abused its discretion in responding to the arguments

made to it. The argument that Kucana now wants to

advance was not presented to the Board in 2006; it is

therefore not open to Kucana in this court.

He proposes to avoid that problem by contending that

factionalism within the Democratic Party was the basis

of his 1996 application for asylum. This does not help

Kucana, because as we have observed several times

already a motion to reopen must be supported by proof

of changed country conditions; proof that an old condition has continued does not suffice. Not that the

record shows a current risk of deadly schism within

the Democratic Party; that subject was not addressed

by the papers that the Board had before it in 2006. 

If the risk that Kucana would face in Albania has increased materially since 2006, he can file another motion
6 No. 07-1002

to reopen. The only question open today is whether the

Board abused its discretion when concluding that the

evidence did not show a material adverse change in

country conditions between 2002 and 2006. That decision

did not constitute an abuse of discretion, so the petition

for review is

DENIED.

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