Pur sua nt to Fed era l RuleofAppel lat e P roc edu re 43( c)( 2), 1 Att orn ey Gen era l E ricH. Ho lde r, Jr. is au tomati cal ly sub sti tut ed forfo rme r Atto rne y G ene ral Mi cha el B. Muk ase y a s r esp ondentinth is cas e. 08 -44 73 -ag Agostin v. Holder BIA A79 669 224 

### UNITE D STATES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMAR Y 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 24 252 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 1 3 UPON DUE CONSIDERATION of this petition for review of a 1 4 decision of the Board of Immigration Appeals (“BIA”), it is 1 5 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 1 6 review is DENIED. 1 7 Petitioner Jubani Agostin, a native and citizen of 1 8 Albania, seeks review of an August 12, 2008 order of the BIA 1 9 denying his motions to reopen and reconsider. In re Jubani 20 Agostin , No. A79 669 224 (B.I.A. Aug. 12, 2008). We assume 2 1 the parties’ familiarity with the underlying facts and 2 2 procedural history of the case. 2 3 As a preliminary matter, we lack jurisdiction to 2 4 consider Agostin’s argument that the BIA should have 2 5 reopened his proceedings sua sponte . See 8 C.F.R. 2 6 § 1003.2(a); Azmond Ali v. Gonzales , 448 F.3d 515, 518 (2d 2 7 Cir. 2006). Because Agostin fails to challenge the BIA’s 2 8 denial of his untimely motion to reconsider, we deem any3 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 1 0 not abuse its discretion in finding that Agostin failed to 1 1 present material evidence of changed country conditions 1 2 sufficient to satisfy the exception to the time limitation. 13 See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. 1 4 § 1003.2(c)(3)(ii); INS v. Abudu , 485 U.S. 94, 104-105 1 5 (1988). 1 6 Contrary to Agostin’s argument that the BIA failed to 1 7 consider the evidence he submitted, the BIA explicitly found 1 8 two inconsistencies between that new evidence and the 1 9 evidence already in the record. Agostin failed to explain 2 0 these inconsistencies. Particularly where the IJ had 2 1 already found that Agostin was not credible, a finding we 2 2 previously affirmed, we find no basis to disturb the4 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: 1 0 Catherine O’Hagan Wolfe, Clerk 11 12 13