11-4656 BIA

Macelara v. Holder 

A028 906 621 

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

New York, on the 26th 4 day of September, two thousand twelve.

5

6 PRESENT:

7 RALPH K. WINTER,

8 JOSEPH M. McLAUGHLIN,

9 PETER W. HALL,

10 Circuit Judges. 

11 _____________________________________

12

13 SKUMBIN MACELARA,

14 Petitioner, 

15

16 v. 11-4656

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

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

24 York.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; William C.

28 Peachey, Assistant Director; Flor M.

29 Suarez, Trial Attorney, Office of

30 Immigration Litigation, Civil

31 Division, United States Department

32 of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 review is DENIED.

5 Skumbin Macelara, a native and citizen of the former

6 Yugoslavia, in what is now Macedonia, seeks review of an

7 October 13, 2011, order of the BIA denying his motion to

8 reopen. In re Skumbin Macelara, No. A028 906 621 (B.I.A.

9 Oct. 13, 2011). We assume the parties’ familiarity with the

10 underlying facts and procedural history of this case.

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

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

13 Cir. 2006) (per curiam). A petitioner may file only one

14 motion to reopen, and that motion must be filed within 90

15 days of the date the final administrative decision was

16 rendered, 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

17 § 1003.2(c)(2), unless the motion is based on material

18 evidence of changed country conditions arising in the

19 petitioner’s country of nationality, 8 U.S.C.

20 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). 

21 Here, there is no dispute that Macelara’s 2011 motion

22 was untimely and number-barred because he previously filed a

23 motion to reopen and his administrative order of removal

24 became final in 1996. See 8 U.S.C. § 1229a(c)(7)(A),
1 Contrary to Macelara’s assertion, the BIA credited

Dr. Fischer as an expert in Balkan history.

3

1 (C)(i); see also 8 C.F.R. § 1003.2(c)(2). In addition, the

2 evidence of changed conditions in Macedonia submitted with

3 Macelara’s motion, an affidavit by Balkan history professor

Dr. Bernd Fischer,1 4 was insufficient to establish materially

5 changed conditions in Macedonia since his last hearing. See

6 Matter of S-Y-G-, 24 I&N Dec. 247, 253 (BIA 2007) (“In

7 determining whether evidence accompanying a motion to reopen

8 demonstrates a material change in country conditions that

9 would justify reopening, [the BIA] compare[s] the evidence

10 of country conditions submitted with the motion to those

11 that existed at the time of the merits hearing below.”);

12 accord 8 C.F.R. § 1003.2(c)(3)(ii). The BIA considered the

13 evidence in Dr. Fischer’s affidavit of ethnic conflicts for

14 Albanian Muslims, like Macelara, and reasonably concluded

15 that ethnic tensions have been ongoing throughout the

16 history of the region, and do not appear to have worsened in

17 recent years. 

18 Macelara’s contention that the BIA violated his due

19 process rights by “fail[ing] to analyze the record as a

20 whole” is not supported by the record, because the BIA

21 considered the evidence he submitted of changed conditions

22 in Macedonia, and provided adequate findings regarding that
4

1 evidence. See Burger v. Gonzales, 498 F.3d 131, 134 (2d

2 Cir. 2007) (“[t]o establish a violation of due process, an

3 alien must show that []he was denied a full and fair

4 opportunity to present [his] claims or that the IJ or BIA

5 otherwise deprived [him] of fundamental fairness” (internal

6 quotation marks omitted)). To the extent Macelara argues

7 that the BIA is “systematically denying” motions to reopen

8 based on an “excessively high standard,” he has provided no

9 evidence to support this claim. See INS v. Phinpathya, 464

10 U.S. 183, 188 n.6 (1984) (statements of counsel in a brief

11 are not evidence). 

12 For the foregoing reasons, the petition for review is

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

14 removal that the Court previously granted in this petition

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

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

17 oral argument in this petition is DENIED in accordance with

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

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22