2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-3-2014

Agim Rexhaj v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-3837

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Agim Rexhaj v. Attorney General United States" (2014). 2014 Decisions. Paper 662.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/662
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3837

___________

AGIM REXHAJ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A088-527-698)

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 14, 2014

Before: AMBRO, SHWARTZ and NYGAARD, Circuit Judges

(Opinion filed: July 3, 2014)

___________

OPINION

___________
2

PER CURIAM

Agim Rexhaj petitions for review of the Board of Immigration Appeals’ (BIA or 

Board) order denying his motion to reopen his immigration proceedings. For the reasons 

that follow, we will deny the petition for review.

Rexhaj, a native of the former Yugoslavia and citizen of Kosovo, entered the 

United States without inspection in 2007, and was placed in removal proceedings. 

Rexhaj conceded removability but sought asylum, withholding of removal, and protection 

under the United Nations Convention Against Torture, claiming that he was persecuted 

because he helped build homes for ethnic minorities in Kosovo and because he was a 

member of the Democratic League of Kosovo (LDK), a political party. In support of his 

application, Rexhaj contended that members of the Albanian National Army (ANA), an 

extremist group, threatened him, beat him on one occasion, and murdered six of his 

relatives. 

The Immigration Judge (IJ) denied relief in December 2008, finding that Rexhaj 

was not credible and that, in any event, he had not met his burden of proof. The BIA 

dismissed Rexhaj’s appeal in October 2010, agreeing with the IJ on all grounds. Rexhaj 

submitted a petition for review, which we dismissed because it was untimely filed. 

Rexhaj v. Att’y Gen., C.A. No. 10-4469 (order entered Jan. 11, 2011). Thereafter, 

Rexhaj filed a motion to reopen, presenting purportedly new evidence. The BIA denied 

that motion, reasoning that Rexhaj’s evidence was either previously available or failed to 
3

demonstrate his eligibility for relief. Rexhaj filed a petition for review, which we denied. 

Rexhaj v. Att’y Gen., 466 F. App’x 144 (3d Cir. 2012) (not precedential).

Rexhaj filed another motion to reopen in July 2013. The Board denied the motion, 

holding that it was untimely and number-barred, and that Rexhaj failed to establish the 

exception to those limitations based on changed circumstances in Kosovo. The BIA 

further noted that even if Rexhaj satisfied that exception, he did not demonstrate prima 

facie eligibility for relief, in part because he did “not address the adverse credibility 

finding . . . regarding the harm he claimed to have received from the [ANA].” Rexhaj 

filed a timely petition for review. The Government’s “Motion for Summary Affirmance” 

of the BIA’s decision, construed as a motion to summarily deny the petition for review, 

has been referred to this Panel. 

We have jurisdiction pursuant to Immigration and Nationality Act (INA) § 242(a) 

[8 U.S.C. § 1252(a)]. The decision to deny a motion to reopen is reviewed for abuse of 

discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Under this standard, the 

BIA’s decision may be reversed only if it is “arbitrary, irrational, or contrary to law.” 

Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002) (quotation marks and citation 

omitted). An alien may file only one motion to reopen with the BIA and must do so 

within 90 days of the date of entry of a final administrative order of removal. INA 

§ 240(c)(7)(C)(i) [8 U.S.C. § 1229a(c)(7)(C)(i)]; 8 C.F.R. § 1003.2(c)(2). These 

limitations do not apply, however, to motions to reopen seeking asylum or withholding of 

removal based on changed circumstances arising in the country of nationality, if such 
4

evidence is material and was not available and could not have been discovered or 

presented at the previous proceeding. 8 C.F.R. § 1003.2(c)(3)(ii); see also INA 

§ 240(c)(7)(C)(ii) [8 U.S.C. § 1229a(c)(7)(C)(ii)]; Zheng v. Att’y Gen., 549 F.3d 260, 

265 (3d Cir. 2008). The “previous proceeding” refers to the hearing before the 

Immigration Judge. Filja, 447 F.3d at 253. 

We conclude that the motion to reopen filed by Rexhaj in July 2013 was untimely 

and number-barred. In addition, we agree with the BIA that the evidence Rexhaj 

submitted with his motion to reopen was insufficient to demonstrate changed 

circumstances in Kosovo. That evidence included the following items: a personal 

statement; an affidavit by Bernd J. Fischer, a professor of Balkan history; statements 

from Rexhaj’s wife and father; news articles; the 2012 State Department Human Rights 

Report for Kosovo; and copies of family members’ identification documents. In support 

of his motion, Rexhaj alleged that there has been an “obvious surge in ethnic violence 

since this Honorable Board last reviewed [his] case.” In particular, he alleged that his 

wife and children were threatened because they refused to reveal his whereabouts. 

According to Rexhaj, these threats occurred in September 2010, May 2011, and January 

2012. Notably, however, Rexhaj’s original asylum application and first motion to reopen 

relied on threats against his family, and the affidavits of his wife and father do not specify 

whether the threats that they mention are new. Moreover, the affidavits identify the 

people making the threats only as “unknown persons,” fail to explain why ANA members 
5

would continue to look for Rexhaj, and do not otherwise provide information regarding 

changed country conditions in Kosovo.

Professor Fischer’s affidavit’s describes an “unstable situation in Kosovo,” but it 

does not indicate that the unfavorable conditions in that country have significantly 

worsened since the original hearing before the IJ. Moreover, the Human Rights Report 

and news articles do not describe any significant changes that would warrant reopening. 

Rather, as the BIA noted, that evidence “show[s] that ethnic tensions continue to exist in 

Kosovo[, that] the ANA continues to operate in that country, and that human rights 

problems also continue.” Furthermore, the BIA did not abuse its discretion in 

determining that Rexhaj failed to establish that he is prima facie eligible for relief. His 

motion to reopen was based on the same claims that the IJ found incredible, and Rexhaj 

has made no effort to cast doubt on the original adverse credibility determination. See

Khan v. Att’y Gen., 691 F.3d 488, 497 (3d Cir. 2012) (holding that the BIA may rely on a 

prior adverse credibility determination when there is a “sufficient nexus” with the current 

claim); see also Lin v. Att’y Gen., 700 F.3d 683, 688 & n.3 (3d Cir. 2012). 

In sum, we perceive no abuse of discretion in the BIA’s denial of Rexhaj’s second 

motion to reopen. Accordingly, we will deny the petition for review.1

 

1

The Government’s “Motion for Summary Affirmance” is denied.