2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
12-21-2004 

# D ed a j v . Atty Ge n U SA P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-4725

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w . vi l l a no va . e du/thir dc ir c uit_2004/51NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

___________ No. 03-4725

___________ FRA N D EDA J, Petitioner
v. JO HN AS HC RO FT , Attorney General of the United States, Respondent

___________ On Petiti on for Review of a Decisi on by t he Bo ard o f Imm igration Ap peals (No. A76-016-190 )

___________ Submitte d Under Third Circ uit LAR 34.1(a)

December 13, 2004
Be for e: N YG AA RD , RO SE NN , and BE CK ER , Circu it Judges
.

(Fil ed: December 21, 2004)

___________1. The Department of Homeland Secur ity now handles the e nforcement functions of the Immigr ation and Naturali zati on Service. 2 OPINI ON OF THE COURT

___________ NY GA AR D, Circu it Judge
.

Petition er Fra n D edaj is a native and c itizen o f A lbania wh o petitio ns this Co urt for review of a final ord er of r emo val by the Bo ard o f Imm igration Ap peals (Board). We have juris dicti on under 8 U.S.C. § 1252 and now deny the petition. I. Dedaj arrived in the United States in Sept ember of 1999. He was detained upon ent eri ng the Unite d Stat es andthe I mmigration and Natur ali zati on Serv ice ( INS) 1 issued a Notice t o Appear. In Octobe r of 1999, Dedaj appeared befor e an Immigration Jud ge and c onc ede d r emov abi li ty . At th e he ar in g, he f

il ed acl ai m for

as y lum, wit hho ldin g of

rem ova l, and pro tectio n un der the C onv entio n A gain st T ortu re (C AT ). These clai ms were ultimately heard on the merits and denied. Dedaj appeale d the decisi on to the Boar d which conducted a de novo review of hi s clai m. His cla ims for reli ef were again deni ed.

On S eptemb er 16, 200 3 De daj filed a m otion to reope n with the B oard base d on new ly discove red ev idenc e that w ould supp ort his c laim. A fter rev iewin g his motion, the Board decl ined to reopen the cas e. The Board det ermined that Dedaj had not3

met the heavy

burden necess ary

to reopen an applic ation f or asy lum, withholding of removal or protect ion under CAT. The Board als o concluded t hat the evidence pr esented by Dedaj was not

highly probati ve of his cl aims and was an attempt t o reli tigate the clai ms already

denied by

the Board. Petitioner now appeal s the Board’ s refusa l to r eopen his cas e. II.

As w e write only for t

he parties, we review the facts bri efly. Dedaj was a
m em be r o f th e D em oc ra tic Pa rty in A lb an ia. A lth ou gh no lo ng er a C om m un ist co un try, the majority

party in Albania

is the Social ist

Party , which consi sts mai nly of former members of the Communist Par ty . The event t

hat prec ipit ated Dedaj’ s fli ght from Albania was the murder of his brother , Tonin. According to Dedaj , his brother was kill ed by operatives of the Socialist Party. When Ded aj attempted to p rosecute his bro ther’s kill er, he was conf

ronted by

members of the Soci alis t Part y and t old that

he too would be kill ed if he continued his invest igati on. Short ly therea fter, Mr. Dedaj went int o hiding and came to the Un ited States.

Thes e fa ct s f

ormed t he b as is of Mr . De daj ’s in itia l c la im f oras y lum, withholding of removal, and protec tion under CAT. In his moti on to reopen, Dedaj submitt ed addit ional s upport for these cl aims. Spec ific ally , he submit ted a l ette r from the Democratic Par

ty in Albania , supporting hi s clai m that he was a member, and letters from4

his sur viving br others regarding Tonin’s deat h and Dedaj’s involvement wit h the D em oc ra tic Pa rty. III.

Motions to r eopen are gover ned by Ti tle 8 of

the Code of Federal Regulati ons, Section 1003.2. Wether to r eopen a case i s a decis ion within the dis creti on of the bo ard. 8 C.F.R . § 1003.2(a ). Motion s to reopen , like motions fo r a new trial, are trad ition ally dis fav ore d. INS v. Abudu , 485 U.S. 94, 110 (1988). Indeed, t he Board may deny s uch a motion even i f the party makes out a prima faci e cas e fo r relie f. 8 C .F.R . § 100 3.2(a); Abudu , 485 U.S. at 105-6. There is a strong publ ic interest

in bri nging the litiga tion to a c lose as p rom ptly as fairn ess a llow s. Abudu , 485 U .S. at 10 7. Th us, in sit uations such as this, where the Board fi nds that the Petitioner

has not i ntroduced
ma teria l, pre vio usly u nav ailab le ev iden ce, w e rev iew onl y for a bus e of disc retio n. Id. at 105 -6; Sevo ian v. A shcro ft , 290 F.3d 166, 169 -70 (3d C ir. 2002).

IV. Ded aj has not estab lished that the B oard abu sed its discretion. The Board fou nd th at De daj w as attem pting to relitigate a rgum ents tha t he m ade p reviou sly in his initial a pplication and a

ppeal. (App. at 2) . The rel evant re gulati on is writ ten in t he negati ve and provide s that motions t o reopen “shal l not be granted unl ess” the evidence offered by

the Petitioner

is “mate rialand was not avai lable and could not have been discover ed or pres ented at the former

hearing. ” 8 C.F.R. § 1003. 2(c)( 1). The evi dence5

pre sen ted b y De daj is sim ply an exp ans ion of th e ev iden ce p rese nted at his initia l hea ring
. He has not est ablis hed that the addi tionalevidence i s materi al. The factualbasis f or Dedaj’s cl aim has not c hanged based on the addit ional e vidence—he stil l seeks asy lum base d on his m emb ership in the D emo cratic P arty. Ded aj has n ot estab lished th at this evid enc e w as p rev iou sly un ava ilabl e to h im.

Further more, the evidence doe s not show that Dedaj was eli gible f

or politicalasy lum. Despit e the fact that Dedaj and his br other were pol iti call y active, and that hi s brothe r’s death may have been due to hi s poli tica l beli efs, Dedaj testifie d that t he
mas ked m en state d on ly that they w ere thre atenin g him beca use h e w as see king his brother ’s kil ler. An asyl um applicant must prese nt evide nce that compels the conclusi on that t he all eged persec utors de sire to punis h him “on account of ” one of the pr otect ed gro und s. See A ma nfi v. As hcro ft , 328 F.3d 719 (3d Cir. 2003). The Bo ard did not abuse it s d is cr et io n i n f

in di ng t ha t De da j f ai le d t o me et

hi s s ubs tant ia l b ur de n of pr es en ting n ew, materi al evi dence. The Pet iti on for Review is de nied.