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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 26 th** **day of September, two thousand twelve.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **JOSEPH M. McLAUGHLIN,** 8 **PETER W. HALL,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **SKUMBIN MACELARA,** 13 Petitioner**,** 14 15 **v. 11-4656** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Michael P. DiRaimondo, Melville, New** 23 **York.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; William C.** 27 **Peachey, Assistant Director; Flor M.** 28 **Suarez, Trial Attorney, Office of** 29 **Immigration Litigation, Civil** 30 **Division, United States Department** 31 **of Justice, Washington, D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 3 review is DENIED. 4 Skumbin Macelara, a native and citizen of the former 5 Yugoslavia, in what is now Macedonia, seeks review of an 6 October 13, 2011, order of the BIA denying his motion to 7

reopen. In re Skumbin Macelara , No. A028 906 621 (B.I.A. 8 Oct. 13, 2011). We assume the parties’ familiarity with the 9 underlying facts and procedural history of this case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d 12 Cir. 2006) (per curiam). A petitioner may file only one 13 motion to reopen, and that motion must be filed within 90 14 days of the date the final administrative decision was 15 rendered, 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. 16 § 1003.2(c)(2), unless the motion is based on material 17 evidence of changed country conditions arising in the 18 petitioner’s country of nationality, 8 U.S.C. 19 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). 20 Here, there is no dispute that Macelara’s 2011 motion 21 was untimely and number-barred because he previously filed a 22 motion to reopen and his administrative order of removal 23 became final in 1996.See 8 U.S.C. § 1229a(c)(7)(A), 241Contrary to Macelara’s assertion, the BIA credited Dr. Fischer as an expert in Balkan history. 3 (C)(i); see also 8 C.F.R. § 1003.2(c)(2). In addition, the 1 evidence of changed conditions in Macedonia submitted with 2 Macelara’s motion, an affidavit by Balkan history professor 3 Dr. Bernd Fischer, 1was insufficient to establish materially 4 changed conditions in Macedonia since his last hearing. See 5 Matter of S-Y-G- , 24 I&N Dec. 247, 253 (BIA 2007) (“In 6 determining whether evidence accompanying a motion to reopen 7 demonstrates a material change in country conditions that 8 would justify reopening, [the BIA] compare[s] the evidence 9 of country conditions submitted with the motion to those 10 that existed at the time of the merits hearing below.”); 11 accord 8 C.F.R. § 1003.2(c)(3)(ii). The BIA considered the 12 evidence in Dr. Fischer’s affidavit of ethnic conflicts for 13 Albanian Muslims, like Macelara, and reasonably concluded 14 that ethnic tensions have been ongoing throughout the 15 history of the region, and do not appear to have worsened in 16 recent years. 17 Macelara’s contention that the BIA violated his due 18 process rights by “fail[ing] to analyze the record as a 19 whole” is not supported by the record, because the BIA 20 considered the evidence he submitted of changed conditions 21 in Macedonia, and provided adequate findings regarding that 224 evidence. See Burger v. Gonzales , 498 F.3d 131, 134 (2d 1 Cir. 2007) (“[t]o establish a violation of due process, an 2 alien must show that []he was denied a full and fair 3 opportunity to present [his] claims or that the IJ or BIA 4 otherwise deprived [him] of fundamental fairness” (internal 5 quotation marks omitted)). To the extent Macelara argues 6 that the BIA is “systematically denying” motions to reopen 7 based on an “excessively high standard,” he has provided no 8 evidence to support this claim. See INS v. Phinpathya , 464 9 U.S. 183, 188 n.6 (1984) (statements of counsel in a brief 10 are not evidence). 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any stay of 13 removal that the Court previously granted in this petition 14 is VACATED, and any pending motion for a stay of removal in 15 this petition is DISMISSED as moot. Any pending request for 16 oral argument in this petition is DENIED in accordance with 17 Federal Rule of Appellate Procedure 34(a)(2), and Second 18 Circuit Local Rule 34.1(b). 19
FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22