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. 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 15 th** **day of May, two thousand fifteen.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **DEBRA ANN LIVINGSTON,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **JOLA KIMCA, EJLDIN KIMCA,** 13 Petitioners**,** 14 15 **v. 13-3320** 16 **NAC** 17 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** ***** 21

**_____________________________________** 22 23 **FOR PETITIONERS: Kai W. De Graaf, New York, NY.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 26 **General; Carl McIntyre, Assistant** 27

*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.**Director; Brooke Maurer, Trial** 1 **Attorney, Office of Immigration** 2 **Litigation, United States Department** 3 **of Justice, Washington, D.C.** 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED, that the petition for review 7 is DENIED. 8 Petitioners Jola and Ejldin Kimca** , natives and 9 citizens of Albania, seek review of the August 27, 2013, 10 decision of the BIA denying their motion to reopen. In re 11 Jola Kimca, et al. , Nos. A079 128 217/218 (B.I.A. Aug. 27, 12 2013). We assume the parties’ familiarity with the 13 underlying facts and procedural history of the case. 14 An alien seeking to reopen proceedings may file one 15 motion to reopen no later than 90 days after the date on 16 which the final administrative decision was rendered. 17 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 18 The BIA’s regulations prohibit it from reopening 19 proceedings for an alien who has departed. 8 C.F.R. 20 § 1003.2(d). This Court has narrowed that so-called 21 “departure bar” tosua sponte ( i.e. , regulatory) reopening. 22

**The claims of Jola Kimca’s son, Ejldin, are entirely derivative of her claim. 2See Luna v. Holder , 637 F.3d 85, 100-02 (2d Cir. 1 2011)(invalidating departure bar with respect to statutory 2 motions to reopen); Zhang v. Holder , 617 F.3d 650, 655-65 3 (2d Cir. 2010) (upholding departure bar with respect to 4 regulatory reopening). So, an alien’s departure from the 5 United States does not prevent the agency from reopening 6 proceedings, but only if the alien’s motion to reopen is 7 meritorious, timely and not number barred. If, on the other 8 hand, the departed alien’s motion does not comply with the 9 statute ( e.g. , it is untimely or number barred), the 10 departure bar applies, and the agency lacks jurisdiction to 11

reopen sua sponte
. See Luna , 637 F.3d at 100-02. 12 Here, there is no dispute that Kimca filed the motion 13 to reopen after departing the United States, and that her 14 motion was untimely as it was filed more than nine years 15 after the BIA's final administrative decision. See8 U.S.C. 16 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The time and 17 number limitations do not apply to a motion to reopen if it 18 is “based on changed circumstances arising in the country of 19 nationality . . . if such evidence is material and was not 20 available and could not have been discovered or presented at 21 the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see 22 also8 U.S.C. § 1229a(c)(7)(C)(ii). 23 3Kimca argues that the BIA abused its discretion by 1 failing to consider new and material evidence of changed 2 conditions in Albania. We reject this argument as the BIA’s 3 decision expressly referenced that evidence.. . See Jian 4 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) 5 (noting that the BIA does not need to expressly parse or 6 refute every piece of evidence submitted by the petitioner). 7 . The BIA did not abuse its discretion in determining that 8 evidence of an alleged blood feud was not material because 9 it described violence between two families that was criminal 10 in nature rather than politically motivated violence. See 11 Ndoci v. Holder , 448 F. App'x 141 (2d Cir. 2011) (evidence 12 of a blood feud in Albania did not constitute changed 13 country condition that would justify petitioner’s untimely 14 motion to reopen removal proceedings, where there was no 15 allegation of politically motivated or targeted violence, 16 and no evidence that Albanian government was unable or 17 unwilling to protect the petitioner); see also Melgar de 18

Torres v. Reno , 191 F.3d 307, 314 n.3 (2d Cir. 1999) 19 (finding that general civil strife does not establish a 20 well-founded fear of persecution). In any event, Kimca did 21 not provide any evidence that the Albanian government was 22

4unwilling to protect her from the blood feud. See 1 Ivanishvili v. U.S. Dep’t of Justice , 433 F.3d 332, 342 (2d 2 Cir. 2006) (recognizing that private acts can give rise to 3 persecution if the government is shown unwilling to control 4 such actions). Accordingly, the BIA did not abuse its 5 discretion in denying Kimca's motion to reopen because her 6 evidence failed to establish changed country conditions. 7 See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 8 1003.2(c)(3)(ii). 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, any stay of 11 removal that the Court previously granted in this petition 12 is VACATED, and any pending motion for a stay of removal in 13 this petition is DISMISSED as moot. Any pending request for 14 oral argument in this petition is DENIED in accordance with 15 Federal Rule of Appellate Procedure 34(a)(2), and Second 16 Circuit Local Rule 34.1(b). 17

FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20

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