Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 1

Attorney General Eric H. Holder, Jr. is automatically substituted

for former Attorney General Michael B. Mukasey as respondent in this

case.

08-4473-ag

Agostin v. Holder

BIA

A79 669 224

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 1 day of February, two thousand ten. st

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 ROBERT D. SACK,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _______________________________________

12

13 JUBANI AGOSTIN, a.k.a. ZEF GJON VOLAJ,

14 Petitioner,

15

16 v. 08-4473-ag

17 NAC

18 ERIC H. HOLDER, JR., ATTORNEY GENERAL,1

19 Respondent.

20

21 _______________________________________

22

23

24

25
2

1 FOR PETITIONER: Charles Christophe, New York, New

2 York.

3

4 FOR RESPONDENT: Gregory G. Katsas, Assistant

5 Attorney General, James A. Hunolt,

6 Senior Litigation Counsel,

7 Christopher P. McGreal, Trial

8 Attorney, Office of Immigration

9 Litigation, Civil Division, United

10 States Department of Justice,

11 Washington, D.C.

12

13 UPON DUE CONSIDERATION of this petition for review of a

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

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

16 review is DENIED.

17 Petitioner Jubani Agostin, a native and citizen of

18 Albania, seeks review of an August 12, 2008 order of the BIA

19 denying his motions to reopen and reconsider. In re Jubani

20 Agostin, No. A79 669 224 (B.I.A. Aug. 12, 2008). We assume

21 the parties’ familiarity with the underlying facts and

22 procedural history of the case.

23 As a preliminary matter, we lack jurisdiction to

24 consider Agostin’s argument that the BIA should have

25 reopened his proceedings sua sponte. See 8 C.F.R. 

26 § 1003.2(a); Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d

27 Cir. 2006). Because Agostin fails to challenge the BIA’s

28 denial of his untimely motion to reconsider, we deem any
3

1 such argument waived. See Yueqing Zhang v. Gonzales, 426

2 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

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

4 abuse of discretion. See Ali, 448 F.3d at 517. Here, the

5 BIA properly denied Agostin’s motion to reopen as untimely

6 where it was filed over a year after his 2006 final order of

7 removal. See 8 C.F.R. § 1003.2(c)(2) (providing that an

8 applicant must file a motion to reopen within ninety days of

9 the final administrative decision). Moreover, the BIA did

10 not abuse its discretion in finding that Agostin failed to

11 present material evidence of changed country conditions

12 sufficient to satisfy the exception to the time limitation. 

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

14 § 1003.2(c)(3)(ii); INS v. Abudu, 485 U.S. 94, 104-105

15 (1988). 

16 Contrary to Agostin’s argument that the BIA failed to

17 consider the evidence he submitted, the BIA explicitly found

18 two inconsistencies between that new evidence and the

19 evidence already in the record. Agostin failed to explain

20 these inconsistencies. Particularly where the IJ had

21 already found that Agostin was not credible, a finding we

22 previously affirmed, we find no basis to disturb the
4

1 agency’s denial of Agostin’s motion. See Kaur v. Board of

2 Immigration Appeals, 413 F.3d 232, 233-34 (2d Cir. 2005);

3 Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir.

4 2007). 

5 For the foregoing reasons, the petition for review is

6 DENIED. The pending motion for a stay of removal in this

7 petition is DISMISSED as moot.

8

9 FOR THE COURT:

10 Catherine O’Hagan Wolfe, Clerk

11

12

13