12-1688

Lelcaj v. Holder

BIA

A078 726 552

A078 726 553

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 3rd 4 day of October, two thousand thirteen.

5

6 PRESENT:

7 ROBERT D. SACK,

8 BARRINGTON D. PARKER,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges. 

11 _____________________________________

12

13 GJELOSH LELCAJ, ANA LELCAJ,

14 Petitioners, 

15

16 v. 12-1688

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONERS: Michael P. DiRaimondo, DiRaimondo &

24 Masi, LLP, Melville, NY.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Ernesto H. Molina,

28 Jr., Assistant Director; Dana M.

29 Camilleri, Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, DC.
1

2 UPON DUE CONSIDERATION of this petition for review of a

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

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

5 is DENIED.

6 Petitioners Gjelosh and Ana Lelcaj, husband and wife

7 and natives and citizens of Albania, seek review of a March

8 29, 2012, decision of the BIA denying their motion to reopen

9 their removal proceedings. In re Gjelosh Lelcaj, Ana

10 Lelcaj, Nos. A078 726 552/553 (B.I.A. Mar. 25, 2012). We

11 assume the parties’ familiarity with the underlying facts

12 and procedural history in this case.

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

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

15 (2d Cir. 2006) (per curiam). An alien seeking to reopen

16 proceedings is required to file a motion to reopen no later

17 than 90 days after the date on which the final

18 administrative decision was rendered and is permitted to

19 file only one such motion. See 8 U.S.C. § 1229a(c)(7)(A),

20 (C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that

21 Petitioners’ third motion to reopen, filed in 2011, was

22 untimely and number-barred because their orders of removal

23 became final in 2002. See 8 U.S.C. § 1101(a)(47)(B)(i). 

2
1 Petitioners contend, however, that the birth of their

2 U.S.-citizen daughter and an increase in the kidnapping of

3 young women for forced prostitution in Albania constitute

4 materially changed country conditions excusing their motion

5 from the applicable time and numerical limitations. See

6 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).

7 Initially, we note that Petitioners do not challenge

8 the BIA’s finding that their motion did not comply with the

9 governing regulatory requirements, and they have therefore

10 waived review of that dispositive determination. See

11 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7

12 (2d Cir. 2005) (providing that issues not argued in briefs

13 are deemed waived). Indeed, Petitioners did not support

14 their motion to reopen with an updated application for

15 asylum, withholding of removal, and relief under the

16 Convention Against Torture, despite 8 C.F.R. 

17 § 1003.2(c)(1)’s requirement that a “motion to reopen

18 proceedings for the purpose of submitting an application for

19 relief must be accompanied by the appropriate application

20 for relief and all supporting documentation.” (emphasis

21 added). Because Petitioners have declined to challenge this

22 dispositive finding, we do not consider their remaining

3
1 arguments, which relate to the BIA’s treatment of their

2 country conditions evidence. See INS v. Bagamasbad, 429

3 U.S. 24, 25 (1976) (“As a general rule courts and agencies

4 are not required to make findings on issues the decision of

5 which is unnecessary to the results they reach.”). We do,

6 however, note that Petitioners previously moved for

7 reopening on the basis of the purported increase in

8 kidnappings of young women for forced prostitution in

9 Albania, which the BIA found to reflect a continuation

10 rather than a material change in country conditions——a

11 finding that we previously affirmed on appeal. 

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

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