09-0960-ag

Hajderlliu v. Holder

BIA

A077 935 935

A077 935 934

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

4 New York, on the 11 day of February, two thousand ten. th

5

6 PRESENT:

7 JOHN M. WALKER, Jr.,

8 JOSÉ A. CABRANES,

9 BARRINGTON D. PARKER,

10 Circuit Judges. 

11 _____________________________________

12

13 LINDITA HAJDERLLIU, ALSO KNOWN AS 

14 LINDITA HAJDERLLI, ALSO KNOWN AS BRIGITA 

15 PREUC, ALSO KNOWN AS LINDITA NDREU, 

16 ALTIN HAJDERLLI, ALSO KNOWN AS ALTIN 

17 MAJDERLLI, ALSO KNOWN AS DOMEN KRASNJA,

18 Petitioners, 

19

20 v. 09-0960-ag

21 NAC

22 ERIC H. HOLDER, JR., UNITED STATES

23 ATTORNEY GENERAL,

24 Respondent.

25 _____________________________________

26 FOR PETITIONERS: Charles Christophe, New York, New

27 York.
2

1 FOR RESPONDENT: Tony West, Assistant Attorney

2 General; John W. Blakeley, Senior

3 Litigation Counsel; Stefanie

4 Notarino Hennes, Trial Attorney,

5 Office of Immigration Litigation,

6 Civil Division, United States

7 Department of Justice, Washington,

8 D.C.

9

10 UPON DUE CONSIDERATION of this petition for review of a

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

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

13 review is DENIED.

14 Lindita Hajderlliu and Altin Hajderlli, natives and

15 citizens of Albania, seek review of a February 24, 2009,

16 order of the BIA denying their motion to reopen. In re

17 Hajderlliu, Nos. A077 935 935/934 (B.I.A. Feb. 24, 2009). 

18 We assume the parties’ familiarity with the underlying facts

19 and procedural history of this case.

20 As an initial matter, although Petitioners are

21 challenging the denial of relief in “asylum-only”

22 proceedings, as opposed to an actual removal order, this

23 Court nonetheless has jurisdiction under 8 U.S.C. 

24 § 1252(a)(1) because the denial of relief in these

25 circumstances is the functional equivalent of a removal

26 order. See Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir.

27 2006). Contrary to Petitioners’ argument we do not have
3

1 jurisdiction over both the BIA’s February 2009 and May 2002

2 orders. Rather, we have jurisdiction to review only the

3 BIA’s February 2009 order because that is the only order

4 from which Petitioners filed a timely petition for review. 

5 See 8 U.S.C. § 1252(b)(1); Ke Zhen Zhao v. U.S. Dep’t of

6 Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).

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

8 abuse of discretion, mindful of the Supreme Court’s

9 admonition that such motions are “disfavored.” Ali v.

10 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

11 Doherty, 502 U.S. 314, 322-23 (1992)). We review for

12 substantial evidence the BIA’s evaluation of country

13 conditions evidence submitted with a motion to reopen. Jian

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

15 A party may file only one motion to reopen removal

16 proceedings, and must do so no later than 90 days after the

17 date on which the final administrative decision was rendered

18 in the proceeding sought to be reopened. 8 C.F.R.

19 § 1003.2(c)(1), (2). It is beyond dispute that Petitioners’

20 motion to reopen was untimely. However, the time and number

21 limitations do not apply to a motion to reopen that is

22 “based on changed circumstances arising in the country of
4

1 nationality or in the country to which deportation has been

2 ordered, if such evidence is material and was not available

3 and could not have been discovered or presented at the

4 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The time

5 and number bars may also be equitably tolled to accommodate

6 claims of ineffective assistance of counsel, provided that,

7 among other things, the movant has exercised “due diligence”

8 in vindicating his or his rights. See Cekic v. INS, 435

9 F.3d 167, 170 (2d Cir. 2006).

10 Petitioners argue that the BIA failed to properly

11 consider evidence in the record in determining that they did

12 not establish changed country conditions. This argument is

13 unavailing. While the BIA has an obligation to consider the

14 “record as a whole,” and may abuse its discretion by denying

15 a motion to reopen without addressing “all the factors

16 relevant to [a] petitioner’s claim,” Ke Zhen Zhao v. U.S.

17 Dep’t of Justice, 265 F.3d 83, 97 (2d Cir. 2001), it is not

18 required to “expressly parse and refute...each

19 individual...piece of evidence offered by the petitioner.” 

20 Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006). The BIA

21 properly considered the record as a whole, reasonably

22 finding that the evidence Petitioners presented was neither
5

1 material nor previously unavailable. See 8 C.F.R. 

2 § 1003.2(c)(3)(ii). Indeed, Petitioners’ affidavits attest

3 to events that purportedly occurred while they were still in

4 Albania. Moreover, much of the evidence related to the same

5 claim an Immigration Judge had previously found not

6 credible. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-

7 48 (2d Cir. 2007). 

8 With respect to Petitioners’ ineffective assistance of

9 counsel claim, they failed to challenge the BIA’s due

10 diligence finding in their opening brief, raising it for the

11 first time in their reply brief. Accordingly, we deem any

12 such argument waived. See McCarthy v. S.E.C., 406 F.3d.

13 179, 186 (2d Cir. 2005); Yueqing Zhang v. Gonzales, 426 F.3d

14 540, 541 n.1, 545 n.7 (2d Cir. 2005). Because the BIA’s due

15 diligence finding was alone a proper basis upon which to

16 reject Petitioners’ ineffective assistance of counsel claim,

17 we need not reach their other arguments. See Rabiu v. INS,

18 41 F.3d 879, 882 (2d Cir. 1994); Jian Hua Wang v. BIA, 508

19 F.3d 710, 715 (2d Cir. 2007). Even if we were to reach

20 their arguments, we would find no error in the BIA’s

21 conclusion that Petitioners failed to exercise due diligence

22 in the more than six years they sought to toll. See
6

1 Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000).

2 For the foregoing reasons, the petition for review is

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

4 removal that the Court previously granted in this petition

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

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

7 oral argument in this petition is DENIED in accordance with

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

9 Circuit Local Rule 34.1(b).

10 FOR THE COURT: 

11 Catherine O’Hagan Wolfe, Clerk

12

13