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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 9 th** **day of May, two thousand fourteen.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **GUIDO CALABRESI,** 8 **ROSEMARY S. POOLER,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **ADRIAN EMIN, MINA EMIN, MALVIN EMIN,** 13 Petitioners**,** 14 15 **v. 12-4157** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONERS: Michael P. DiRaimondo, Melville, New** 23 **York.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Ernesto H. Molina,** 27 **Jr., Assistant Director; Bernard A.** 28**Joseph, Trial Attorney, Office of** 1 **Immigration Litigation, Civil** 2 **Division, United States Department** 3 **of Justice, Washington, D.C.** 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 decision of the Board of Immigration Appeals (“BIA”), it is 7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 8 review is DENIED. 9 Petitioners Adrian Emin (“Emin”), Mina Emin, and Malvin 10 Emin, natives and citizens of Albania, seek review of an 11 October 11, 2012, order of the BIA denying their motion to 12

reopen. In re Adrian Emin, Mina Emin, and Malvin Emin, Nos. 13 A095 369 508/509/510 (B.I.A. Oct. 11, 2012). We assume the 14 parties’ familiarity with the underlying facts and 15 procedural history in this case. 16 We review the BIA’s denial of a motion to reopen for 17 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d 18 Cir. 2006). An alien seeking to reopen proceedings may file 19 a motion to reopen no later than 90 days after the date on 20 which the final administrative decision was rendered. 21 8 U.S.C.§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 22 There is no dispute that Emin’s 2012 motion was untimely as 23 the agency’s final administrative decision was issued in 24 2004. However, the time limitation may be excused if the 25

2motion is “based on changed circumstances arising in the 1 country of nationality . . . if such evidence is material 2 and was not available and could not have been discovered or 3 presented at the previous hearing.” 8 C.F.R. 4 § 1003.2(c)(3)(ii); see also8 U.S.C. § 1229a(c)(7)(C)(ii). 5 In addition, the deadline may be tolled if the applicant can 6 demonstrate ineffective assistance of counsel, and that he 7 acted with due diligence in pursuing his claim during “both 8 the period of time before the ineffective assistance of 9 counsel was or should have been discovered and the period 10 from that point until the motion to reopen is filed.” 11 Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008) 12 In this case, the BIA’s finding that country conditions 13 in Albania had not changed is supported by substantial 14 evidence. See Jian Hui Shao v. Mukasey,546 F.3d 138, 169 15 (2d Cir. 2008). Emin’s argument that there has been a 16 change in country conditions sufficient to warrant reopening 17 is merely a recasting of his original claim. Emin’s re18 characterization of his problems with his ex-wife’s 19 boyfriend as a blood feud does not alter the fact that both 20 the immigration judge and the BIA considered this issue in 21 the first instance , and thus it cannot be considered a 22

3change in conditions or previously unavailable evidence. 1 See Norani v. Gonzales , 451 F.3d 292, 294 & n.3 (2d Cir. 2 2006)(per curiam). 3 The record also does not support Emin’s 4 characterization that the situation in Albania has changed 5 for the worse for individuals involved in a blood feud or 6 for democratic party members, given that the State 7 Department Country Reports for Albania show that more people 8 were imprisoned due to blood feuds in 2001 than in 2010, and 9 in 2010 it was reported that such killers were tried in 10

court. See Hui Lin Huang v. Holder, 677 F.3d 130, 138 (2d 11 Cir. 2012) (noting that State Department reports are usually 12 the best source of information on country conditions). In 13 addition, the declarations from the two professors similarly 14 support the conclusion that Albania has been, and remains, 15 politically volatile, and thus the declarations do not 16 reflect a material change in conditions. See Jian Hui Shao , 17 546 F.3d at 169. Moreover, the BIA acknowledged all of 18 Emin’s country conditions evidence, specifically singled out 19 the professors’ declarations, and concluded that the 20 evidence did not show that conditions in Albania had changed 21 significantly since 2003. Thus, Emin has not suffered a due 22

4process violation. See Xiao Ji Chen v. U.S. Dep’t of 1 Justice , 471 F.3d 315, 336 n.17 (2d Cir. 2006) (presuming 2 the agency has taken into account all of the evidence unless 3 the record compellingly suggests otherwise); Jian Hui Shao , 4 546 F.3d at 169 (noting that the BIA does not need to 5 “expressly parse or refute” every piece of evidence) 6 (quoting Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 7 2007)). Cf. Poradisova v. Gonzales , 420 F.3d 70, 79-81 (2d 8 Cir. 2005) (holding that the agency abuses its discretion 9 when it fails to address evidence of changed country 10 conditions, and that it must consider events cumulatively, 11 not in isolation). 12 Finally, Emin’s argument that his ineffective 13 assistance of counsel claim should be considered 14 cumulatively, with other evidence, ignores the prerequisite 15 that he demonstrate an exception to the filing deadline for 16 motions to reopen. Ineffective assistance of counsel claims 17 toll the time for filing only if the alien demonstrates due 18 diligence for the entire period he wishes to toll–-in this 19 case, eight years. See Rashid, 533 F.3d at 131. Here, 20 however, Emin makes no showing of diligence, and the record 21 demonstrates that he was aware of his counsel’s performance 22

5when he filed his initial appeal with the BIA in 2003. 1 Because Emin did not demonstrate due diligence and because 2 the BIA’s country conditions determination is supported by 3 substantial evidence, the BIA did not abuse its discretion 4 by denying the motion as untimely. 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our review, any stay of 7 removal that the Court previously granted in this petition 8 is VACATED, and any pending motion for a stay of removal in 9 this petition is DISMISSED as moot. Any pending request for 10 oral argument in this petition is DENIED in accordance with 11 Federal Rule of Appellate Procedure 34(a)(2), and Second 12 Circuit Local Rule 34.1(b). 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16 17

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