20

- 189 Kandic v. Garland BIA A076 002 014 

### 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 ELECTR ONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A**  **PARTY CITING TO 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 Mar shall United**  2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 1**  **4 t**  **h day of**  **F e**  **b r**  **u a**  **r y**  **, two thousan d**  **twenty**
**- two** 

**.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **ROBERT D. SACK,** 8 **REENA RAGGI,** 9 **Circuit Judges.** 10

**_____________________________________** 11 12 **HAKO KANDIC,** 13 **Petitioner ,**  14 15
**v. 20** 

**- 189**  16 **NAC** 17 **MERRICK B. GARLAND, UNITED** 18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Gregory Marotta, Law Office of 23 Gregory Marotta, Vernon, NJ. 24 25 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 26 Assistant Attorney General ; 27 Jessica E. Burns , Senior 28 Litigation Counsel; Juria L. 292 Jones, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of J ustice, 3 Washington, D

. C. 4
UPON DUE CONSIDERATION of this petition for review of a 5
Board of Immigration Appeals (“BIA”) decision, it is hereby 6
ORDERED, ADJUDGED, AND DECREED that the petition for review 7

is DENIED. 8

Petitioner Hako Kandic, a native of the former Yugoslavia 9
and citizen of Montenegro, seeks review of a December 19, 10

2019 decision of the BIA denying his third motion to reopen. 11

In re Hako Kandic , No. A 076 002 014 (B.I.A. Dec. 19, 2019). 12
We assume the parties’ fami liarity with the underlying facts 13
and procedural history. 14

We review the BIA’s denial of a motion to reopen for 15

abuse of discretion. Jian Hui Shao v. Mukasey , 546 F.3d 138, 16

168

- 69 (2d Cir. 2008). “ We will identify such abuse only if 17
the Board’s decision inexplicably departs from established 18
policies or is so devoid of rational explanation as to raise 19
concern that it acted in an arbitrary or capricious manner.” 20

Scarlett v. Barr , 957 F.3d 316, 326 (2d C ir. 2020) (internal 21
quotation marks omitted). We find no abuse of discretion 22

here. 23
Kandic’s motion to reopen , his third such motion , filed 243 approximately 15 years after the agency’s final order of 1

removal, was both untimely and number barred

. See 8 U.S.C. 2

§ 1229a(c)(7)(A), (C)(i) (authorizing petitioner to file one 3
motion to reopen proceedings within 90 days of final 4
administrative order of removal) ; 8 C.F.R. § 1003.2(c)(2) 5

(same)

. T he time and number limitations do not apply if 6
reopening is sough t to apply or reapply for asylum and the 7
motion is “based on changed country conditions arising in the 8
country of nationality or the country to which removal has 9

been ordered

. ” 8 U.S.C. § 1229a(c)(7)(C)(ii) . This 10
exception obtains, however, only if such evidence is 11

“ material and was not available and would not have been 12
discovered or presented at the previous proceeding .” Id. ; 13

accord 8 C.F.R. § 1003.2(c)(3). 14
The BIA did not err in finding that this exception did 15
not apply because Kandic’s evidence was not material

. In 16
Kandic’s underlying removal proceedings, the immigration 17
judge (“IJ”) made an adverse credibility determination based 18
on significant inconsistencies between Kandic’s in

- court 19
testimony on the one hand and his written asylum a pplication 20
and testimony before an asylum officer on the other

. 21
Specifically, Kandic testified inconsistently concerning his 224 membership in political parties ; his involvement in political 1

demonstrations ; and the extent of the harm he suffered on 2

account of such activities. 3
In moving to reopen , Kandic submitted reports and 4
affidavits describing ongoing political tensions in 5

Montenegro , including an affidavit from his brother asserting 6
that police we re still looking for Kandic on account of his 7
prior political activities

. Because this wa s th e same factual 8
predicate for Kandic’s underlying claim, he was required to 9

rebut the IJ’s adverse credibility determination to secure 10
reopening

. See Paul v. Gonzales , 444 F.3d 148, 154 (2d Cir. 11

2006) (holding that petitioner can secure reopening 12
notwithstanding IJ’s prior adverse credibility determination 13

if “ factual predicate of

. . . claim of future persecution is 14
independent of ” testimony found not to be credible (emphasis 15
in original)) ; Kaur v. BIA , 413 F.3d 232, 234 (2d Cir. 2005) 16

( upholding BIA’s denial of motion to reopen on ground that 17

“evidence submitted . . . was not ‘material’ because it did 18

not rebut

. . . adverse credibility finding ” supporting IJ’s 19
denial of underlying asylum application)

. 20
The BIA reasonably concluded that Kandic did not rebut 21

the IJ’s adverse credibility determination. B oth Kandic’s 225 own affidavit and his brother’s maintain that Kandic would be 1
persecuted in Montenegro based on his prior political 2

activities , and his country conditions evidence purports to 3
show worsening political tension in Montenegro . None of this 4

evidence , however, casts doubt on the IJ’s adverse 5
credibility determination because it does not explain the 6

many inconsistencies between Kandic’s in

- court testimony and 7
his prior statements . Even if his or his brother’s statements 8

could rehabilitate Kandic’s credibility, the BIA was not 9
required to credit those statements in lig ht of the underlying 10
credibility determination concerning th ose same facts. See 11
Qin Wen Zheng v. Gonzales , 500 F.3d 143, 147

– 48 (2d Cir. 2007) 12

( identifying no error in BIA’s rejection of documentary 13
evidence given underlying credibility concerns ). 14

Kandic argues that the IJ’s adverse credibility 15
determination violated due process because he had not been 16
prepared to proceed pro se at his hearing

. He seeks remand 17

to allow him to testify with the assistance of counsel. In 18
reviewing the denial of a motion to reopen, however, “we are 19
precluded from passing on the merits of the underlying 20
exclusion proceedings ” and , instead , must “confine our review 21
to the denial of the petitioner’s motion to reopen .” Paul , 226 444 F.3d at 153 (internal quotation marks om itted). 1
Accordingly, where , as here, “ an asylum applicant does not 2
file a timely appeal disputing the BIA’s affirmance of the 3
IJ’s credibility ruling ”

— whether on due process or other 4
grounds

— “ a motion to reopen does not provide a collateral 5
route by w hich the [applicant] may challenge the validity of 6
the original credibility determination.” Id. In any event , 7

Kandic d oes not explain how counsel ’s absence during his 8
testimony bore on the credibility determination . He assert s 9
only that he testified under duress due to the lack of 10

counsel

. But such a conclusory claim does not persuade given 11
Kandic’s failure, a s noted sup r a , to explain the 12
inconsistencies between his testimony and his prior 13

statements

. 14
Accordingly, the BIA did not abuse its discretion in 15
denying Kandic’s motion to reopen because he relied on his 16
original claim and “ did not rebut the adverse credibility 17

findin g that provided the basis for the IJ’s denial of [his] 18
underlying asylum application.” Kaur , 413 F.3d at 234

. 197 For the foregoing reasons, the petition for review is 1
DENIED. All pending motions and applications are DENIED and 2

stays VACATED. 3

FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court 6