11-1584-ag

Molic v. Holder

BIA

A075 862 164

 A075 862 165

 A075 862 166

 A075 862 167

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

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 25th day of September, two thousand twelve.

PRESENT:

ROBERT D. SACK,

REENA RAGGI,

PETER W. HALL,

Circuit Judges. 

_____________________________________

DZAVID MOLIC, MERITA MOLIC, ADMIR

MOLIC, EDON MOLIC,

Petitioners, 

 v. 11-1584-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_______________________________________

FOR PETITIONER: Andrew P. Johnson, Esq., New York,

New York.
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FOR RESPONDENT: Tony West, Assistant Attorney

General; Lyle D. Jentzer, Senior

Litigation Counsel; Paul F. Stone,

Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED.

Petitioners Dzavid, Merita, Admir, and Edon Molic,

natives of the former Federal Republic of Yugoslavia, seek

review of the March 30, 2011 order of the BIA denying their

motion to reopen. In re Molic et al., No. A075 862

164/65/66/67 (B.I.A. Mar. 30, 2011). We assume the parties’

familiarity with the underlying facts and procedural history

of the case. We review the BIA’s denial of a motion to

reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d

232, 233 (2d Cir. 2005) (per curiam). 

The BIA’s denial of Petitioners’ motion to reopen as

untimely was not an abuse of discretion. See Kaur, 413 F.3d

at 233. An alien seeking to reopen proceedings may file one

motion to reopen no later than 90 days after the date on

which the final administrative decision was rendered. 

See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 
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There is no dispute that Petitioners’ July 2010 motion was

untimely, as the BIA’s final administrative decision was

issued in 2003. See id. The time limitation does not apply

to a motion to reopen if it is “based on changed

circumstances arising in the country of nationality or in

the country to which deportation has been ordered, if such

evidence is material and was not available and could not

have been discovered or presented at the previous hearing.” 

8 C.F.R. § 1003.2(c)(3)(ii); see 8 U.S.C.

§ 1229a(c)(7)(C)(ii). However, the BIA’s finding that

Petitioners failed to demonstrate changed country conditions

is supported by substantial evidence. See Jian Hui Shao v.

Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 

Petitioners do not contend that they demonstrated an

increased risk of persecution in Kosovo on account of their

Albanian ethnicity, a claim dismissed by the IJ in their

initial proceedings. Nor do they challenge the BIA’s

finding that Dzavid’s eligibility for adjustment of status

is not a basis for reopening his proceedings. Rather, they

assert only that the BIA failed expressly to address

evidence that they face renewed threats due to their

Albanian ethnicity and Serbian extremists’ perception that

they supported Montenegro’s independence. We are not

persuaded.
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The BIA explicitly addressed each piece of evidence

proffered by Petitioners to demonstrate future harm, and

reasonably found that the evidence did not show that

Petitioners faced future persecution in Montenegro. As the

BIA noted, the 2008 Amnesty International article stated

that conditions in Montenegro had changed with its

declaration of independence in 2006, but did not mention any

mistreatment of ethnic Albanians or persons who supported

independence. Moreover, the article indicated that the

Montenegrin government prosecutes cases of discrimination,

thereby undermining Petitioners’ suggestion that the

government is unable or unwilling to protect them. See

Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir. 2006) (stating

that “persecution” involves harm inflicted either by

government of country or by persons or organization that

government is unable or unwilling to control). 

The affidavits Petitioners submitted do not contradict

the background evidence. Because the 2002 attack against

Dzavid’s sister predated the 2006 declaration of

independence, it cannot reasonably be considered to

constitute evidence of current conditions in Montenegro. 

See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

§ 1003.2(c)(3)(ii). As to the threats Dzavid’s sister
5

allegedly received, the BIA reasonably found that while a

different person’s affidavit speculated that the threats

came from Serbian extremists, the sister’s affidavit stated

that the persons who had threatened her were “unidentified”

and had not revealed their motivations. Because the BIA

reasonably found that Petitioners failed to establish

changed conditions arising in Montenegro, it did not abuse

its discretion in denying their motion as untimely. See 8

U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Ke

Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 97 (2d Cir.

2001). 

For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DENIED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk