13-3320

Kimca v. Lynch

BIA

A079 128 217

A079 128 218

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 15th 4 day of May, two thousand fifteen.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 DEBRA ANN LIVINGSTON,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges.

11 _____________________________________

12

13 JOLA KIMCA, EJLDIN KIMCA,

14 Petitioners, 

15

16 v. 13-3320

17 NAC

18

19 LORETTA E. LYNCH, UNITED STATES 

20 ATTORNEY GENERAL, 

Respondent.* 21

22 _____________________________________

23

24 FOR PETITIONERS: Kai W. De Graaf, New York, NY. 

25

26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

27 General; Carl McIntyre, Assistant

*Pursuant to Federal Rule of Appellate Procedure 43(c)(2),

Attorney General Loretta E. Lynch is automatically substituted

for former Attorney General Eric H. Holder, Jr.
1 Director; Brooke Maurer, Trial

2 Attorney, Office of Immigration

3 Litigation, United States Department

4 of Justice, Washington, D.C.

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

Petitioners Jola and Ejldin Kimca** 9 , natives and

10 citizens of Albania, seek review of the August 27, 2013,

11 decision of the BIA denying their motion to reopen. In re

12 Jola Kimca, et al., Nos. A079 128 217/218 (B.I.A. Aug. 27,

13 2013). We assume the parties’ familiarity with the

14 underlying facts and procedural history of the case. 

15 An alien seeking to reopen proceedings may file one

16 motion to reopen no later than 90 days after the date on

17 which the final administrative decision was rendered.

18 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

19 The BIA’s regulations prohibit it from reopening

20 proceedings for an alien who has departed. 8 C.F.R. 

21 § 1003.2(d). This Court has narrowed that so-called

22 “departure bar” to sua sponte (i.e., regulatory) reopening. 

** The claims of Jola Kimca’s son, Ejldin, are entirely

derivative of her claim.

2
1 See Luna v. Holder, 637 F.3d 85, 100-02 (2d Cir.

2 2011)(invalidating departure bar with respect to statutory

3 motions to reopen); Zhang v. Holder, 617 F.3d 650, 655-65

4 (2d Cir. 2010) (upholding departure bar with respect to

5 regulatory reopening). So, an alien’s departure from the

6 United States does not prevent the agency from reopening

7 proceedings, but only if the alien’s motion to reopen is

8 meritorious, timely and not number barred. If, on the other

9 hand, the departed alien’s motion does not comply with the

10 statute (e.g., it is untimely or number barred), the

11 departure bar applies, and the agency lacks jurisdiction to

12 reopen sua sponte. See Luna, 637 F.3d at 100-02.

13 Here, there is no dispute that Kimca filed the motion

14 to reopen after departing the United States, and that her

15 motion was untimely as it was filed more than nine years

16 after the BIA's final administrative decision. See 8 U.S.C.

17 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The time and

18 number limitations do not apply to a motion to reopen if it

19 is “based on changed circumstances arising in the country of

20 nationality . . . if such evidence is material and was not

21 available and could not have been discovered or presented at

22 the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see

23 also 8 U.S.C. § 1229a(c)(7)(C)(ii). 

3
1 Kimca argues that the BIA abused its discretion by

2 failing to consider new and material evidence of changed

3 conditions in Albania. We reject this argument as the BIA’s

4 decision expressly referenced that evidence.. . See Jian

5 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008)

6 (noting that the BIA does not need to expressly parse or

7 refute every piece of evidence submitted by the petitioner). 

8 . The BIA did not abuse its discretion in determining that

9 evidence of an alleged blood feud was not material because

10 it described violence between two families that was criminal

11 in nature rather than politically motivated violence. See

12 Ndoci v. Holder, 448 F. App'x 141 (2d Cir. 2011) (evidence

13 of a blood feud in Albania did not constitute changed

14 country condition that would justify petitioner’s untimely

15 motion to reopen removal proceedings, where there was no

16 allegation of politically motivated or targeted violence,

17 and no evidence that Albanian government was unable or

18 unwilling to protect the petitioner); see also Melgar de

19 Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999)

20 (finding that general civil strife does not establish a

21 well-founded fear of persecution). In any event, Kimca did

22 not provide any evidence that the Albanian government was

4
1 unwilling to protect her from the blood feud. See

2 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d

3 Cir. 2006) (recognizing that private acts can give rise to

4 persecution if the government is shown unwilling to control

5 such actions). Accordingly, the BIA did not abuse its

6 discretion in denying Kimca's motion to reopen because her

7 evidence failed to establish changed country conditions. 

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

9 1003.2(c)(3)(ii).

10 For the foregoing reasons, the petition for review is

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

12 removal that the Court previously granted in this petition

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

14 this petition is DISMISSED as moot. Any pending request for

15 oral argument in this petition is DENIED in accordance with

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

17 Circuit Local Rule 34.1(b).

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe, Clerk

20

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