NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON F ile Nam e: 12a0860n.06 No. 11-3874 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

MARTA PRECAJ , Petitioner,

v. ERI C H. HOL DER, J R. Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ON PETI TI ON FOR REVI EW F R O M T H E B O A R D O F I MMI GRATI ON APPEAL S

Before: BOGG S and WHITE , Circuit Judges, and B LACK , District Judge .

* HELE NE N. WHITE , Circuit Judge

. Petitioner Marta Preca j (“Pre caj” ) seeks revie w of the Boa rd o f I m m i gra tion Appea ls’ (“B I A”) dismiss al of her second motion to reope n remova l proce eding s. We affirm. I. Preca j is a native and citizen of Albania. On or about J u n e 1 5 , 2 001, Preca j enter ed the United States without inspection, arr iving at or near Br ownsville, Texas. She was appre hended by the Depa rtment of Homeland Security near the border and serve d with a Notice to A ppear , subject to remova l under the I mmigration and Nationality Act, 8 U.S.C. §§ 1182(a) (6)( A)(i)

. On Marc h 12,

The Honora

ble Timothy S. Bla ck, District J udg e for the U.S. District Court for the Southern * District of Ohio, sitting by desig nation.No. 11-3874

Precaj v . Holder 2002, Precaj ap p ea re d in immigra tion court in Detroit, Michig an, wher e she admitted to the alleg ations in the Noti ce to Appea r and conce ded removability

. On J une 11, 2002, she subm itted

an application for asy lum, withhold i n g o f remova l, and protec tion under the Convention Ag ainst Torture

. I n her asy lum application, Preca j claimed that she an d h er fa m ily had been subjected to perse cution rela ting to her fathe r’s association with the Albanian Democr atic Party

. She stated that afte r the Socialist Party took control in 1997, her family rec eived numerous threa tening phone calls. Specifica lly , her fa m i l y was war ned that should her fathe r ref use to leave the Democr atic Party , Preca j would be kidnapped and sold to g ang s in I taly that would forc e her into prostitution. Preca j further claimed that on Marc h 10, 2001, at the ag e of nineteen, four people came to her home while her f ather was a way , forc ed themselve s into her house by brea king ope n the door, a

nd took Preca

j from the home ag ainst her will. Howeve r, her assailants’ vehicle broke down later that evening and Preca j was able to flee

. She ran to a near by house and was let inside afte r the homeowner s hear d her y elling and scre aming

. Her family was contac ted the next day and came to take her home. Fe aring that her assailants would soon return to kidnap or kill her, Preca j fled Albania and ar ri ved in the United States from Mexico sever al months later. I n September 2002, afte r hear ing Preca j’s testimony in support of her asy lum application, the I mmigration J udg e (“I J ”) made an adver se cre dibilit y deter mination, and denied Preca j’s application for relief and protec tion. The I J held that wher e “[c]redibilit y is a cruc ial aspec t of most asy lum

case s . . . the responde nt does not car ry her burden.” Specifica lly , the I J noted that in her testimony , Preca j “wa s uncer

tain about many matters, was vag ue on many matters, [and ] ch an ged her -2-No. 11-3874

Precaj v . Holder testimony .” The I J also noted that Preca j did not corr oborate an y p ar t o f h er claims or testimony with cre dible information, and the only evidenc e that she did supply was of questionable authenticity and “ra ise[d] more questions about [her] cre dibilit y than it solve[d] in her favor .” Additionally , the I J found that Preca

j had failed to produce documents to establish her identity as a citizen of Albania. Neither was she able to e stablish whe n, wher e, and how she enter ed the United States, calling into question the timeliness of her a sy lum application. ** The following y ear , Preca j appea led the deter

mination o f t h e I J , challeng ing the adver se

cre dibilit y finding on the g rounds that the inconsistencies in her appea l wer e “minor and irrele vant,” and claiming that the I J ’s finding s of no past perse cution and no well-founde d fe ar o f future perse cution wer e err oneous. On Marc h 24, 2004, the BI A u p h el d t h e adver se cre dibilit y deter mination and dismiss ed the appea l, holding in a per cu ri am decision that Preca j’s testimony contained materia l inconsistencies, both within t h e as y lum application itself and when compar ed aga i nst the corr oborating evidenc e. Fur thermore , the BIA noted that Preca j had failed to explain these inconsist encie s either during the proce eding s below or on appea l. Preca j filed a petition for revie w in this court, which we denied on Oc tober 26, 2005. I n August o f 2 0 0 9 , Preca j filed a motion to reope n with the BIA pursuant to 8 U.S.C. § 1229a(c )(7) (C)(ii), based on new and materia l evidenc e reg arding chang ed country conditions. As part of her appea l, Preca j submitt ed s ev eral aff

idavits from her pare nts and sister in Albania, detailing continued threa ts of violence ag ainst her family , as well as an alleg ed attack in which her

U n d e r 8 U

. S

. C

. § 1 1 5 8 ( a ) ( 2 ) ( B ) , a n a l i e n h a s t h e b u r d e n o f d e m o n s t r a t i n g b y c l e a r a n d c o n v i n c i n g e v i d e n c e 1 t h a t t h e a p p l i c a t i o n h a s b e e n f i l e d w i t h i n o n e y e a r a f

t e r t h e d a t e o f t h e a l i e n ’ s a r r i v a l i n t h e U n i t e d S t a t e s . -3-No. 11-3874

Precaj v . Holder mother was injured. Additionally , Preca j submitt ed sever al rec ent newspa per and periodica l article s that descr ibed the volatile political situation in Albania. Howeve r, the BIA denied Preca j’s motion beca use it was outside of the statutory ninety -day limit ation period. Although § 1229a(c )(7) (C)(ii) allows the BIA to consider untimely motions when the petitioner submits evidenc e of chang ed circ umstances in the country of nationality , the BIA fou nd that the evidenc e prese nted was insufficient to fall within the exception. The BIA held that Preca j’s claim was “esse ntially the same as it was below, i.e. that [P rec aj] fa ces perse cution in A lbania bec ause of her f amily ’s ac tiviti es in support of the Democr atic Party .” Fur thermore , the BI A n o t ed that the motion to reope n did not addre ss the I J ’s adve rse c redibility finding , and that Preca j had submitted no evidence to establish her ide ntity

or her rela tionship t o the per sons alleg ed to be he r par ents and sister. I n Fe bruar

y of 2011, Preca

j filed a second motion to reope n, ag ain basing her claim on new and materia l evidenc e of chang ed country conditions in Albania. I n addition to her birth cer tificate, Preca j submitt ed as evidenc e an expert decla ration of Dr. Br ian Wil liams, associate profe ssor of I slamic History at the University of Massac husetts, Dar tmouth, discussing the prostitution trade and kidnapping of y oung g irls in Albania, as well as sever al more news article s reg arding org aniz ed

cr i m e and human traff

icking

. On J uly 18, 2011, the BIA denied this second motion to reope n as untimel y an d n umber-ba rre d. The BIA ag ain noted that Preca j failed to addre ss the adver se

cre dibilit y finding of the I J

. Additionally , the BIA held that none of the new evidenc e demonstrated conditions signific antly differ ent from those that exis ted at the time of the 2002 hear ing, and noted that some of the evidenc e prese nted actua lly pre- dated the 2002 hear ing. Finally , the BIA conclude d that the evidenc e failed to establish a materia l chang e in conditions, and there fore , Preca j could not -4-No. 11-3874

Precaj v . Holder demonstrate that she falls within the exception to permit an untimely motion to reope n. This petition for r eview f

ollowed. II. Motions to reope n remova l proce eding s are g overne d under 8 U.S.C. § 1229a(c )(7) , which states in subsection (A) that an alien m ay ty pically file only one motion to reope n. Fur ther, subsection (C ) re q u i re s that the motion “be filed within ninety day s of the date of entry of a final administrative order of remova l.” Howeve r, these time and number limit ations may be waived if the purpose of the motion is to apply for asy lum or withholding of d ep o rt at i o n “base d on chang ed country conditions arising i n the country of nationality or the country to which remova l has been order ed,” and the petitioner prese nts evidenc e that is “mater ial and was not available and would not have be en discove red or

prese nted at the pr evious proce eding .” 8 U.S.C. § 1229a(c )(7) (C)(ii). The B I A is vested with “br oad discre tion to gra nt or deny

such motions,” and ther e ar e “at least t h re e independe nt g rounds on which the BI A might deny a motion to reope n – failure to establish a prima fac ie case for the relief soug ht, failure to introduce previously unavailable , materia l evidenc e, and a deter

mination that even if these require ments wer e satisfied, the movant would not be entitled to the discretionar y g rant of relief which he soug ht.” I.N.S. v. Doherty , 502 U.S. 314, 323 (1992). Motions to reope n are particula rly disfavore d in deporta tion proce eding s, “where , as a g ener al matter, ever

y delay works to t h e ad v an t age of the deporta ble alien who wishes mere ly to

rema in in the United States.” Id. This rationale is rela ted to a “s t ro n g public interest in bring ing litigation to a close as promptly as is consistent with t h e i n t erest in g iving the adver saries a fair opportunity to develop and prese nt their respe ctive case s.” I.N.S. v. Abudu , 485 U.S. 94, 95 (1988). -5-No. 11-3874

Precaj v . Holder Finally , in the context of motions to reope n remova l proce eding s, the moving party bear s the “hea vy burden” of providing new and m at er i al evidenc e sufficie nt to overc ome the statutory time and number limitations. Given the broad discretionar y power g rante d to the BIA, the denial of a motion to reope n is proper ly revie wed on appea l under the “a b u se of discretion” standard. Haddad v. Gonzales , 437 F.3d 515, 517 (6th Cir. 2006). Under this standa rd, the BIA’s denial of a motion to reope n will be upheld unless it “ was made without a rational explanation, inexplicably depar ted from established policies, or rest ed o n an impermissible basis such as invidious discrimination ag ainst a particula r

rac e or g roup.” Id. (citing Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005) (alterations i n orig inal) (c itations omi tted)). I t is undisputed that Preca j’s second motion to reope n, filed near ly seven y ear s afte r the BI A’s final order of remova l, is time- and number-ba rre d, unless Preca

j can prese nt previous l y unavailable and undiscovera ble materia l evidence of chang ed country conditions in Albania. On appea l, Preca

j argues that the BIA abused its discretion in basing its denial of her motion to reope n

on Preca j’s failure to provide new and materia l evidenc e of chang ed country conditions and the I J ’s adver se cre dibilit y finding

. Preca j further argues that the BIA violated her due proce ss rig hts when it failed to consi d er all of the evidenc e prese nted in the motion to reope n. We will addre ss eac h argument in turn.

-6-No. 11-3874

Precaj v . Holder III. A. P rec aj first argues that the BI A err ed in denying her motion to reope n based on t h e I J ’s adver se cre dibilit y finding

. Preca j submits that the I J did not make any “spec ific” adver se cre dibilit y finding s, but rathe r “merely s u m m ar i z ed

. . . by stating that Ms. Preca j had not met her burden of proof.” This argument is without merit. I n the I J ’s denial of her asy lum application, the I J noted that “[c]redibilit y is a cruc ial aspec t of most asy lum case s. The bottom line, to be politely put, is that the responde nt does not car

ry her bur den.” T he cour

t continued: Plus, as i n the case sub judice, the w eake r t he applicant’s t estimony the gre ater the need for cre dible corr oborative evidenc e . . . The Court notes that the responde nt was u n certain about m any matters, was vag ue on many matters, chang ed her testimony . . . on one important matter, a nd this case c ries out for c orrobor ation. The I J then went on to note numerous inconsistencie s betwee n her a sy lum application, testimony , and corr oborating evidenc e. The I J , in his decision, was clea r in noting which portions of Preca j’s testimony strained cr ed ibilit y . Acc ording ly , the BI A di d not abuse its discretion in rely ing on the I J ’s adver se cre dibilit y finding to rea ch its decision. See Zhang v. Mukase y , 543 F.3d 851 (6th Cir. 2008) (holding that it was not an abuse of discretion for the BIA to consider an unrebutted adver se

cre dibilit y

deter mination in declining to cr edit evidenc e provide d in a motion to reopen). B. P re caj also argues that the BIA err ed in finding that the curr ent conditions in Al b an i a, as descr ibed in Dr. Wil liams’s decla ration and in the sever al periodica l article s submitt ed as evidenc e,

-7-No. 11-3874

Precaj v . Holder

wa s “substantially simil ar to those that exis ted at the time of the responde nt’s 2002 hear ing.” Howeve r, as the BIA pointed out, sever al of the newspa per article s s u b m i t t ed by Preca j and ref ere nced in Dr. Wil liams’s decla ration actua lly predate Preca j’s 2002 hear ing. Preca

j claims that the evidenc e submitt ed “wa s not previously available , and could n o t h ave been discovere d or prese nted” at her 2002 hear ing. Howeve r, P rec aj does not attempt to explain why these pre-2002

m at eria ls wer e unavailable or undiscovera ble at her initial hear ing. Be cause these article s wer e written befor e Preca

j’s immigra

tion hear ing and Preca

j has not adequatel y ex p l ained why these article s wer e previously unav ailable and undiscovera ble, the BIA proper ly deter mined that the article s do not demonst rate a chang e in country conditions since Preca j’s initial hear ing in immigra tion court. Additionally , althoug h it is true that Dr. Wil liams’s decla ration and sever al other article s wer e written or published afte r 2002 and there fore wer e unavailable at the time of Preca j’s asy l u m h ea ri n g, the mere timeliness of this evidenc e is not dispositi ve. The evidenc e must also “esta blish[ ] the exis tence of materia lly chang ed conditions” and “must offe r rea sonably specific information showing a rea l threa t of individual perse cution.” Harche nko v. I.N.S. , 379 F.3d 405, 410 (6th Cir. 2004). The post-2002 e vidence submitt ed with Prec aj’s motion fails to do either. Additionall y , t h e BI A did not abuse its discretion in holding that the newly submitt ed evidenc e was insufficient to demonstrate a chang e in conditions that was materia l to Preca j’s claims for relief

. The BIA held that both Dr. Wil liams’s decla ration and the rele vant post-2002 newspa per article s did not establish chang ed country conditio n s wi th respe ct to human traff icking , mafia violence, and politically -motivated violence. I n Preca j’s initial immigra ti o n h earing in 2002, she sub m i tted a Depa

rtment of State 2002 Country Report on Albania, as well as a 2001 Profile on -8-No. 11-3874

Precaj v . Holder Albania, both of which descr ibed a situation very simil ar to that d epicted in Dr. Wil liams’s decla ration eig ht y ear s later. I ndeed, as the g overnme nt corr ectly points out, Dr

. W i l l i ams’s decla ration, on which Preca

j relies heavily , does not demonstrate a signific ant chang e in conditions in Albania since 2002, but rathe r descr ibes issues reg arding human traff icking and org anized crime that date ba ck to the beg inning of his studies in t he 1980s. Be cause Preca

j has not demonstrated that t he BIA err ed in upholding the I J ’s adver se

cre dibilit y finding and failed to prese nt sufficie nt materia l evidenc e of chang ed country conditions to waive the statutory time limit ation, the BIA did not abuse its discretion in denying Preca j’s second motion to reopen re moval proce eding s. IV. Despite the fac t that there is no constitutional rig ht to asy lum, aliens in the United States have

a due proce ss r ight to a fair immigra tion he aring

. See Bridges v. W ixon , 326 U.S. 135, 160 (1945) (holding that the power to deport aliens is limit ed by the due proce ss g uara ntees of a fair hear ing)

. I mplicit in these g uara

ntees is “the opportunity to be hear d at a meaning ful time and in a meaning ful

manner . ” Mathews v. Eldridge , 424 U.S. 319, 333 (1976). I n the context of immigra tion proce eding s, “due proce ss entitles a person to fac tfinding based on a rec ord produced befor e the decisionmake r and disclosed to that person . . . and an individualiz ed deter mination of his interests . . . . Finally , it requires tha t the decisionmake r ac tually consider the evidenc e and a rg ument that a party prese nts.” de la Llana-Cast ellon v. I.N.S. , 16 F.3d 1093, 1096 (10th Cir. 1994) (quotations and citations omitt ed).

-9-No. 11-3874

Precaj v . Holder I n her due proce ss claim, Preca j argues that the BIA err ed by failing to consider the evidenc e submitt ed as part of her second motion to re o p en . R el y ing on the Third Circuit case , Abdulai v. Ashcroft , Preca

j argues that the BIA had a responsibility to “ac tually consider the evid ence and argument that a party prese nts.” 239 F.3d 542, 549 (3d Cir. 2001). In failing to do so, Preca j arg ues the B I A violated her

due proc ess g uara

ntees to an individualized determination of he r intere sts. I n Abdulai , the court stated that “the question for due proce ss purposes is not wh et h er the BIA rea ched the correc t decision; rathe r, it is simply whether the BIA m ade an individualiz ed deter mination of [t he petitioner’ s] i ntere sts.” 239 F.3d at 550. Be cause “ag ency action is entitled to a presumption of reg

ulari ty , [t he petitioner] bear s the burden of proving that the BIA did not revie w the rec ord when it consi d er ed t h e appeal.” Id. (bra ckets in orig inal) (citation omitted). Fur thermore , it is not nece ssary that the B I A’s opinion “mention eve ry piece of evide nce be fore it

or ever y logic al element of a motion.” See Zhang , 543 F.3d at 854 (“[T]he Boa rd need only analy

ze and explain the basis on which it decide d ag ainst [t he petitioner]”). Rather, a due-pr ocess violation will be found only wher e “the BIA’s decision conta i ned no indication that it had undertaken a particula rized considera

tion of [t he petitioner’s] case .” Abdulai , 239 F.3d at 550 (ci t i ng LlanaCastellon v. INS , 16 F.3d 1093 ( 10th Cir.1994)) (bra ckets in orig inal). Preca j claims that in the J uly 18, 2011 decision, the BIA “complete ly ignor ed” the additional evidenc e submitt ed with he r motion. We disa g ree . The BIA, in its decision, clea rly indicated that it had considere d the evidenc e submitt ed, and conclude d that the evidenc e was either inadmissible

as no t p re v i o usly unavailable and undiscovera ble, or insufficient to establish chang ed country conditions in Albania. The B I A spec ifically stated that Preca j’s evidenc e depicted c onditions t hat -10-No. 11-3874

Precaj v . Holder wer e “substantially simil ar” to those es t ab l ished in her 2002 hear ing. Although the BIA does not specific ally ref

ere nce eac h item of evidenc e prese nted, its analy sis would not be possible if the BI A had, as Pre caj a

rg ues, “c ompletely

ignor ed” the evidenc e provide d. Given the serious conce rns rela ting to Preca j’s unrebutted adver se cre dibilit y deter mination and the strong public interest in prompt and eff icient deporta

tion proce eding s, rema

nding in this case “bec ause the Boa

rd did not needle ssly discuss documents on points of fact n o t m at eria l to its d ec i sion would frustrate this policy of finality in immigra tion proce eding s without any benef it

. ” Zhang , 543 F.3d. at 855. V. For the fore g oing rea sons, Preca j has not demonstrated that the BIA abused its discretion in denying her motion reope n, or that the BIA’s failure to consider her arg uments amount ed t o a violation of her due process rights. Acc ording ly , we AFFI RM the BI A’s denial of her motion to reope n remova l proce eding s.

-11-