09-4095-ag 

Canaj v. Holder 

BIA 

A097 478 771

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 ASUMMARY 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 12th day of August, two thousand ten. 

PRESENT: 

DEBRA ANN LIVINGSTON, 

GERARD E. LYNCH, 

DENNY CHIN, 

 Circuit Judges. 

_____________________________________ 

SHTJEFEN CANAJ, 

Petitioner, 

 v. 09-4095-ag 

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent. 

_____________________________________ 

FOR PETITIONER: Charles Christophe, New York, New York 

FOR RESPONDENT: Tony West, Assistant Attorney General; James 

A. Hunolt, Senior Litigation Counsel; Jesse 

Lloyd Busen, Trial Attorney, Office of 

Immigration Litigation, Civil Division, United 

States Department of Justice, Washington, 

D.C. 
2 

UPON DUE CONSIDERATION of this petition for review of a decision of 

the Board of Immigration Appeals (ABIA@), it is hereby ORDERED, ADJUDGED, 

AND DECREED, that the petition for review is DENIED. 

Shtjefen Canaj, a native of Kosovo and citizen of the former Yugoslavia, 

seeks review of a September 9, 2009, order of the BIA denying his motion to 

reopen. In re Shtjefen Canaj, No. A097 478 771 (B.I.A. Sept. 9, 2009). We 

assume the parties= familiarity with the underlying facts and procedural history of 

this case. 

We review the BIA=s denial of a motion to reopen for abuse of discretion, 

mindful of the Supreme Court=s admonition that such motions are Adisfavored.@ 

Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 

314, 322-23 (1992)). A party may file only one motion to reopen removal 

proceedings, and must do so no later than 90 days after the date on which the 

final administrative decision was rendered in the proceeding sought to be 

reopened. 8 C.F.R. ' 1003.2(c)(1),(2). It is beyond dispute that Canaj=s motion to 

reopen was untimely. 

I. Ineffective Assistance of Counsel

Where ineffective assistance of counsel prevents an alien from presenting 

his claim, the filing deadline for motions to reopen may be equitably tolled. Cekic 

v. INS, 435 F.3d 167, 171 (2d Cir. 2006). In order to warrant equitable tolling, an 

alien is required to demonstrate Adue diligence@ in pursuing his claims during 
3 

Aboth the period of time before the ineffective assistance of counsel was or 

should have been discovered and the period from that point until the motion to 

reopen is filed.@ See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). We 

have noted that Athere is no period of time which we can say is per se 

unreasonable, and, therefore, disqualifies a petitioner from equitable tolling -- or, 

for that matter, any period of time that is per se reasonable.@ Jian Hua Wang v. 

BIA, 508 F.3d 710, 715 (2d Cir. 2007). 

We find no abuse of discretion in the BIA=s conclusion that Canaj 

failed to exercise due diligence where he filed his motion to reopen over one year 

after he discovered that he received ineffective assistance of counsel. See id. 

Canaj does not deny that he became aware of the BIA=s decision in September or 

October 2007, but asserts that he did not learn that his prior counsel had failed to 

file a brief until he retained new counsel and that it took him time to file 

complaints against his former counsel. However, Canaj did not explain when he 

retained new counsel, when he filed the complaints, nor why obtaining new 

counsel and filing complaints against his former counsel took over one year. 

Accordingly, Canaj fails to demonstrate that the BIA abused its discretion in 

denying his untimely motion. See Id.

II. Changed Country Conditions

The time and number limitations also do not apply to a motion to reopen 

that is Abased on changed circumstances arising in the country of nationality or in 
4 

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). We review for substantial 

evidence the BIA=s evaluation of country conditions evidence submitted with a 

motion to reopen. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 

Canaj argues that the BIA abused its discretion in denying his motion to 

reopen in light of the evidence presented. While the BIA has an obligation to 

consider the Arecord as a whole@ and may abuse its discretion by denying a 

motion to reopen without addressing Aall the factors relevant to [a] petitioner=s 

claim,@ Ke Zhen Zhao v. U.S. Dep=t of Justice, 265 F.3d 83, 97 (2d Cir. 2001), it is 

not required to Aexpressly parse or refute . . . each individual . . . piece of 

evidence offered by the petitioner.@ Wei Guang Wang v. BIA, 437 F.3d 270, 275 

(2d Cir. 2006) (internal quotation marks omitted). Here, the BIA considered 

Canaj=s evidence, including an affidavit from Prenk Camaj, but determined that 

any changes were insufficient to warrant reopening and that conditions had, in 

fact, improved. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) 

(AWhere there are two permissible views of the evidence, the factfinder=s choice 

between them cannot be clearly erroneous.@ (internal quotation marks omitted)). 

 On this record, we cannot conclude that the BIA erred in evaluating 

Canaj=s evidence. See Jian Hui Shao, 546 F.3d at 169; Ke Zhen Zhao, 265 F.3d 

at 93. Thus, we will not disturb its denial of Canaj=s untimely motion to reopen. 
5 

Moreover, the BIA did not err in denying Canaj=s CAT claim because it was based 

on the same factual predicate as his claim for withholding of removal. See Paul 

v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006). 

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 DISMISSED 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