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.**  **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 3 rd** **day of October, two thousand thirteen.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **BARRINGTON D. PARKER,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **GJELOSH LELCAJ, ANA LELCAJ,** 13 Petitioners**,** 14 15 **v. 12-1688** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONERS: Michael P. DiRaimondo, DiRaimondo &** 23 **Masi, LLP, Melville, NY.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Ernesto H. Molina,** 27 **Jr., Assistant Director; Dana M.** 28 **Camilleri, Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, DC.** 321 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioners Gjelosh and Ana Lelcaj, husband and wife 6 and natives and citizens of Albania, seek review of a March 7 29, 2012, decision of the BIA denying their motion to reopen 8 their removal proceedings. In re Gjelosh Lelcaj, Ana 9 Lelcaj, Nos. A078 726 552/553 (B.I.A. Mar. 25, 2012). We 10 assume the parties’ familiarity with the underlying facts 11 and procedural history in this case. 12 We review the BIA’s denial of a motion to reopen for 13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 14 (2d Cir. 2006) (per curiam). An alien seeking to reopen 15 proceedings is required to file a motion to reopen no later 16 than 90 days after the date on which the final 17 administrative decision was rendered and is permitted to 18 file only one such motion. See 8 U.S.C. § 1229a(c)(7)(A), 19 (C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that 20 Petitioners’ third motion to reopen, filed in 2011, was 21 untimely and number-barred because their orders of removal 22 became final in 2002. See 8 U.S.C. § 1101(a)(47)(B)(i). 23

2Petitioners contend, however, that the birth of their 1 U.S.-citizen daughter and an increase in the kidnapping of 2 young women for forced prostitution in Albania constitute 3 materially changed country conditions excusing their motion 4 from the applicable time and numerical limitations. See 5 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3). 6 Initially, we note that Petitioners do not challenge 7 the BIA’s finding that their motion did not comply with the 8 governing regulatory requirements, and they have therefore 9 waived review of that dispositive determination. See 10 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 11 (2d Cir. 2005) (providing that issues not argued in briefs 12 are deemed waived). Indeed, Petitioners did not support 13 their motion to reopen with an updated application for 14 asylum, withholding of removal, and relief under the 15 Convention Against Torture, despite 8 C.F.R. 16 § 1003.2(c)(1)’s requirement that a “motion to reopen 17 proceedings for the purpose of submitting an application for 18 reliefmust beaccompanied by the appropriate application 19 for relief and all supporting documentation.” (emphasis 20 added). Because Petitioners have declined to challenge this 21 dispositive finding, we do not consider their remaining 22

3arguments, which relate to the BIA’s treatment of their 1 country conditions evidence. See INS v. Bagamasbad, 429 2 U.S. 24, 25 (1976) (“As a general rule courts and agencies 3 are not required to make findings on issues the decision of 4 which is unnecessary to the results they reach.”). We do, 5 however, note that Petitioners previously moved for 6 reopening on the basis of the purported increase in 7 kidnappings of young women for forced prostitution in 8 Albania, which the BIA found to reflect a continuation 9 rather than a material change in country conditions——a 10 finding that we previously affirmed on appeal. 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 23 24

4