12-4157

Emin v. Holder

BIA

A095 369 508

A095 369 509

 A095 369 510

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 9th 4 day of May, two thousand fourteen.

5

6 PRESENT:

7 RALPH K. WINTER,

8 GUIDO CALABRESI,

9 ROSEMARY S. POOLER,

10 Circuit Judges. 

11 _____________________________________

12

13 ADRIAN EMIN, MINA EMIN, MALVIN EMIN,

14 Petitioners, 

15

16 v. 12-4157

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONERS: Michael P. DiRaimondo, Melville, New

24 York.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Ernesto H. Molina,

28 Jr., Assistant Director; Bernard A.
1 Joseph, Trial Attorney, Office of

2 Immigration Litigation, Civil

3 Division, United States Department

4 of Justice, Washington, D.C.

5

6 UPON DUE CONSIDERATION of this petition for review of a

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

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

9 review is DENIED.

10 Petitioners Adrian Emin (“Emin”), Mina Emin, and Malvin

11 Emin, natives and citizens of Albania, seek review of an

12 October 11, 2012, order of the BIA denying their motion to

13 reopen. In re Adrian Emin, Mina Emin, and Malvin Emin, Nos.

14 A095 369 508/509/510 (B.I.A. Oct. 11, 2012). We assume the

15 parties’ familiarity with the underlying facts and

16 procedural history in this case.

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

18 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

19 Cir. 2006). An alien seeking to reopen proceedings may file

20 a motion to reopen no later than 90 days after the date on

21 which the final administrative decision was rendered. 

22 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 

23 There is no dispute that Emin’s 2012 motion was untimely as

24 the agency’s final administrative decision was issued in

25 2004. However, the time limitation may be excused if the

2
1 motion is “based on changed circumstances arising in the

2 country of nationality . . . if such evidence is material

3 and was not available and could not have been discovered or

4 presented at the previous hearing.” 8 C.F.R.

5 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). 

6 In addition, the deadline may be tolled if the applicant can

7 demonstrate ineffective assistance of counsel, and that he

8 acted with due diligence in pursuing his claim during “both

9 the period of time before the ineffective assistance of

10 counsel was or should have been discovered and the period

11 from that point until the motion to reopen is filed.” 

12 Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008)

13 In this case, the BIA’s finding that country conditions

14 in Albania had not changed is supported by substantial

15 evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169

16 (2d Cir. 2008). Emin’s argument that there has been a

17 change in country conditions sufficient to warrant reopening

18 is merely a recasting of his original claim. Emin’s re19 characterization of his problems with his ex-wife’s

20 boyfriend as a blood feud does not alter the fact that both

21 the immigration judge and the BIA considered this issue in

22 the first instance, and thus it cannot be considered a

3
1 change in conditions or previously unavailable evidence. 

2 See Norani v. Gonzales, 451 F.3d 292, 294 & n.3 (2d Cir.

3 2006)(per curiam). 

4 The record also does not support Emin’s

5 characterization that the situation in Albania has changed

6 for the worse for individuals involved in a blood feud or

7 for democratic party members, given that the State

8 Department Country Reports for Albania show that more people

9 were imprisoned due to blood feuds in 2001 than in 2010, and

10 in 2010 it was reported that such killers were tried in

11 court. See Hui Lin Huang v. Holder, 677 F.3d 130, 138 (2d

12 Cir. 2012) (noting that State Department reports are usually

13 the best source of information on country conditions). In

14 addition, the declarations from the two professors similarly

15 support the conclusion that Albania has been, and remains,

16 politically volatile, and thus the declarations do not

17 reflect a material change in conditions. See Jian Hui Shao,

18 546 F.3d at 169. Moreover, the BIA acknowledged all of

19 Emin’s country conditions evidence, specifically singled out

20 the professors’ declarations, and concluded that the

21 evidence did not show that conditions in Albania had changed

22 significantly since 2003. Thus, Emin has not suffered a due

4
1 process violation. See Xiao Ji Chen v. U.S. Dep’t of

2 Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) (presuming

3 the agency has taken into account all of the evidence unless

4 the record compellingly suggests otherwise); Jian Hui Shao,

5 546 F.3d at 169 (noting that the BIA does not need to

6 “expressly parse or refute” every piece of evidence)

7 (quoting Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir.

8 2007)). Cf. Poradisova v. Gonzales, 420 F.3d 70, 79-81 (2d

9 Cir. 2005) (holding that the agency abuses its discretion

10 when it fails to address evidence of changed country

11 conditions, and that it must consider events cumulatively,

12 not in isolation). 

13 Finally, Emin’s argument that his ineffective

14 assistance of counsel claim should be considered

15 cumulatively, with other evidence, ignores the prerequisite

16 that he demonstrate an exception to the filing deadline for

17 motions to reopen. Ineffective assistance of counsel claims

18 toll the time for filing only if the alien demonstrates due

19 diligence for the entire period he wishes to toll–-in this

20 case, eight years. See Rashid, 533 F.3d at 131. Here,

21 however, Emin makes no showing of diligence, and the record

22 demonstrates that he was aware of his counsel’s performance

5
1 when he filed his initial appeal with the BIA in 2003. 

2 Because Emin did not demonstrate due diligence and because

3 the BIA’s country conditions determination is supported by

4 substantial evidence, the BIA did not abuse its discretion

5 by denying the motion as untimely.

6 For the foregoing reasons, the petition for review is

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

8 removal that the Court previously granted in this petition

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

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

11 oral argument in this petition is DENIED in accordance with

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

13 Circuit Local Rule 34.1(b).

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

17

6