09-0960-ag

Hajderlliuv. Holder BIA A077 935 935 A077 935 934 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, I S 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 1 0 UPON DUE CONSIDERATION of this petition for review of a 1 1 decision of the Board of Immigration Appeals (“BIA”), it is 1 2 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 1 3 review is DENIED. 1 4 Lindita Hajderlliu and Altin Hajderlli, natives and 1 5 citizens of Albania, seek review of a February 24, 2009, 1 6 order of the BIA denying their motion to reopen. In re 17 Hajderlliu, Nos. A077 935 935/934 (B.I.A. Feb. 24, 2009). 1 8 We assume the parties’ familiarity with the underlying facts 1 9 and procedural history of this case. 2 0 As an initial matter, although Petitioners are 2 1 challenging the denial of relief in “asylum-only” 2 2 proceedings, as opposed to an actual removal order, this 2 3 Court nonetheless has jurisdiction under 8 U.S.C. 2 4 § 1252(a)(1) because the denial of relief in these 2 5 circumstances is the functional equivalent of a removal 2 6 order. See Kanacevic v. INS , 448 F.3d 129, 134 (2d Cir. 2 7 2006). Contrary to Petitioners’ argument we do not have3 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 See8 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 1 2 substantial evidence the BIA’s evaluation of country 1 3 conditions evidence submitted with a motion to reopen. Jian 14 Hui Shao v. Mukasey , 546 F.3d 138, 169 (2d Cir. 2008). 1 5 A party may file only one motion to reopen removal 1 6 proceedings, and must do so no later than 90 days after the 1 7 date on which the final administrative decision was rendered 1 8 in the proceeding sought to be reopened. 8 C.F.R. 1 9 § 1003.2(c)(1), (2). It is beyond dispute that Petitioners’ 2 0 motion to reopen was untimely. However, the time and number 2 1 limitations do not apply to a motion to reopen that is 2 2 “based on changed circumstances arising in the country of4 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). 1 0 Petitioners argue that the BIA failed to properly 1 1 consider evidence in the record in determining that they did 1 2 not establish changed country conditions. This argument is 1 3 unavailing. While the BIA has an obligation to consider the 1 4 “record as a whole,” and may abuse its discretion by denying 1 5 a motion to reopen without addressing “all the factors 1 6 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 1 8 required to “expressly parse and refute...each 1 9 individual...piece of evidence offered by the petitioner.” 20 Wang v. BIA , 437 F.3d 270, 275 (2d Cir. 2006). The BIA 2 1 properly considered the record as a whole, reasonably 2 2 finding that the evidence Petitioners presented was neither5 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 1 0 diligence finding in their opening brief, raising it for the 1 1 first time in their reply brief. Accordingly, we deem any 1 2 such argument waived. See McCarthy v. S.E.C. , 406 F.3d. 1 3 179, 186 (2d Cir. 2005) ; Yueqing Zhang v. Gonzales , 426 F.3d 1 4 540, 541 n.1, 545 n.7 (2d Cir. 2005). Because the BIA’s due 1 5 diligence finding was alone a proper basis upon which to 1 6 reject Petitioners’ ineffective assistance of counsel claim, 1 7 we need not reach their other arguments. See Rabiu v. INS , 1 8 41 F.3d 879, 882 (2d Cir. 1994); Jian Hua Wang v. BIA, 508 1 9 F.3d 710, 715 (2d Cir. 2007). Even if we were to reach 2 0 their arguments, we would find no error in the BIA’s 2 1 conclusion that Petitioners failed to exercise due diligence 2 2 in the more than six years they sought to toll. See6 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). 1 0 FOR THE COURT: 1 1 Catherine O’Hagan Wolfe, Clerk 12 13