10-3088-ag

Drejaj v. Holder

BIA

A098 212 429

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 20th 4 day of May, two thousand eleven.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 RICHARD C. WESLEY,

9 DENNY CHIN,

10 Circuit Judges.

11 _______________________________________

12

13 ARBEN DREJAJ,

14 Petitioner,

15

16 v. 10-3088-ag 

17 NAC

18

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONER: Thomas V. Massucci, New York, New

25 York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Jennifer Paisner Williams,

29 Senior Litigation Counsel; Tiffany

30 L. Walters, Trial Attorney, Office

31 of Immigration Litigation, Civil

32 Division, United States Department

33 of Justice, Washington, D.C.
1 We denied Drejaj’s petition for review of the

BIA’s June 2008 decision. Drejaj v. Holder, 336 Fed.

Appx. 102 (2d Cir. 2009). 

2

1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

4 review is DENIED.

5 Arben Drejaj, a native and citizen of Albania, seeks

6 review of a July 16, 2010, order of the BIA denying his

7 motion to reopen his removal proceedings. In re Arben

8 Drejaj, No. A098 221 429 (B.I.A. July 16, 2010). We assume

9 the parties’ familiarity with the underlying facts and

10 procedural history of the case.

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

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

13 517 (2d Cir. 2006) (per curiam). An alien who has been

14 ordered removed may file one motion to reopen, but must do

15 so within 90 days of the final administrative decision. 8

16 U.S.C. § 1229a(c)(7). Here, the BIA did not abuse its

17 discretion by denying Drejaj’s motion to reopen as untimely,

18 as his motion was filed in January 2010, more than one year

19 after the entry of his June 2008 final order of removal. See

id.; 8 C.F.R. § 1003.2(c)(2).1 20
3

1 Although the time limitation may be excepted upon a

2 showing of changed country conditions, the BIA’s

3 determination that Drejaj failed to make such a showing is

4 supported by substantial evidence. 8 U.S.C. § 1229a(c)(7). 

5 As an initial matter, the BIA properly examined whether

6 country conditions had changed between the time of Drejaj’s

7 merits hearing and the submission of his motion to reopen. 

8 See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007)

9 (holding that “[i]n determining whether evidence

10 accompanying a motion to reopen demonstrates a material

11 change in country conditions that would justify reopening,

12 we compare the evidence of country conditions submitted with

13 the motion to those that existed at the time of the merits

14 hearing below”). Further, the BIA’s initial decision is not

15 inconsistent with its denial of reopening. The BIA reversed

16 the IJ’s grant of asylum because conditions in Albania had

17 improved since Drejaj arrived in the United States in 2004,

18 whereas the BIA in its July 2010 decision found that the

19 conditions in Albania had not materially worsened since the

20 2006 merits hearing. 

21

22
4

1 Moreover, the BIA reasonably concluded that Drejaj

2 failed to establish changed conditions in Albania. The

3 evidence Drejaj submitted in support of his motion indicated

4 continuing sectarian conflict in Albania. However, Drejaj

5 failed to point to evidence in the record establishing a

6 material change, as the background documentation submitted

7 in support of his original application provided similar

8 information regarding sectarian violence in Albania. See

9 Matter of S-Y-G-, 24 I. & N. Dec. at 253. Therefore,

10 substantial evidence supports the BIA’s determination that

11 Drejaj failed to establish changed country conditions. See

12 8 U.S.C. § 1229a(c)(7), 8 C.F.R. §§ 1003.2(c)(2),

13 (c)(3)(ii); see also Jian Hui Shao v. Mukasey, 546 F.3d 138,

14 169 (2d Cir. 2008) (holding that when the BIA considers

15 relevant evidence of country conditions in evaluating a

16 motion to reopen, this Court reviews the BIA’s factual

17 findings under the substantial evidence standard).

18 Further, the BIA did not abuse its discretion in

19 appraising the evidence Drejaj submitted. As Drejaj fails

20 to offer any reasons explaining why the BIA erred, we defer

21 to the agency’s evaluation of the documentary evidence. 

22 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 

23 342 (2d Cir. 2006) (finding that the weight afforded to the
5

1 applicant’s evidence in immigration proceedings lies largely

2 within the discretion of the agency). Also contrary to

3 Drejaj’s position, a reasonable fact-finder would not be

4 compelled to conclude that the BIA ignored any material

5 evidence. See Jian Hui Shao, 546 F.3d at 169 (this Court

6 has rejected the notion that the BIA must “expressly parse

7 or refute on the record each individual argument or piece of

8 evidence offered by the petitioner”). Rather, the BIA

9 considered the evidence in some detail, explicitly citing to

10 the record and finding that the evidence was similar to that

11 submitted in his earlier proceedings.

12 Because the BIA reasonably concluded that Drejaj failed

13 to demonstrate a change in country conditions, the BIA did

14 not abuse its discretion in denying Drejaj’s motion to

15 reopen as untimely. 8 C.F.R. §§ 10003.2(c)(2), (c)(3)(ii). 

16 Accordingly, we do not reach Drejaj’s argument that he is

17 prima facie eligible for relief. See 8 U.S.C. 

18 § 1229a(c)(7)(C)(ii).

19 For the foregoing reasons, the petition for review is

20 DENIED. As we have completed our review, any stay of

21 removal that the Court previously granted in this petition

22 is VACATED, and any pending motion for a stay of removal in

23 this petition is DENIED as moot. Any pending request for
6

1 oral argument in this petition is DENIED in accordance with

2 Federal Rule of Appellate Procedure 34(a)(2), and Second

3 Circuit Local Rule 34.1(b).

4

5 FOR THE COURT:

6 Catherine O’Hagan Wolfe, Clerk

7