12-4567

Haxhari v. Holder

BIA

A095 467 979

A095 467 980

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

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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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 24th 4 day of October, two thousand thirteen.

5

6 PRESENT:

7 ROBERT D. SACK,

8 BARRINGTON D. PARKER,

9 DENNY CHIN,

10 Circuit Judges.

11 _____________________________________

12

13 ALTIN HAXHARI, RITA HAXHARI,

14 Petitioners, 

15

16 v. 12-4567

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONERS: Michael P. DiRaimondo, DiRaimondo &

24 Masi, LLP, Melville, NY. 

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Mary Jane Candaux,

28 Assistant Director; Michael C.

29 Heyse, Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioners Altin and Rita Haxhari, natives and

6 citizens of Albania, seek review of the October 31, 2012,

7 decision of the BIA denying their motion to reopen. In re

8 Altin Haxhari, et al., Nos. A095 467 979/980 (B.I.A. Oct.

9 31, 2012). We assume the parties’ familiarity with the

10 underlying facts and procedural history of the case. 

11 An alien seeking to reopen proceedings may file one

12 motion to reopen no later than 90 days after the date on

13 which the final administrative decision was rendered.

14 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 

15 There is no dispute that Altin Haxhari’s May 2012 motion was

16 untimely and number-barred, as it was his third motion to

17 reopen, filed more than seven years after the BIA’s final

administrative decision.* 18 See 8 U.S.C. § 1229a(c)(7)(C)(i);

19 8 C.F.R. § 1003.2(c)(2). The time and number limitations do

20 not apply to a motion to reopen if it is “based on changed

*The claims of Altin Haxhari’s wife, Rita, are entirely

derivative of his claim.

2
1 circumstances arising in the country of nationality . . . if

2 such evidence is material and was not available and could

3 not have been discovered or presented at the previous

4 hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.

5 § 1229a(c)(7)(C)(ii). 

6 With regard to Haxhari’s political activism claim, the

7 BIA found that Haxhari failed to show that his fears were on

8 account of a protected ground, rather than due to general

9 unrest and instability. While Haxhari contended that

10 Albania had “become particularly dangerous for politically

11 active persons such as” himself, in 2003 an IJ found Haxhari

12 to be not credible with regard to his claim that he had been

13 politically active in Albania, and Haxhari presented no

14 evidence in his motion to reopen that showed political

15 activism on his part, or rebutted in any way the adverse

16 credibility determination. Accordingly, the BIA’s

17 determination that Haxhari had not established changed

18 country conditions that were material to his claim is

19 supported by substantial evidence. See Jian Hui Shao v.

20 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 

21 Moreover, as to his claim regarding a blood feud,

22 Haxhari submitted no new evidence specific to his situation,

3
1 rather, his evidence described generally the prevalence of

2 blood feuds in Albania. Accordingly, because, as we stated

3 in our decision denying Haxhari’s prior petition for review,

4 Haxhari provided evidence that the individual who set his

5 house on fire was arrested and detained after doing so, and

6 that the Committee of Nationwide Reconciliation was

7 mediating the feud between the two families, he did not show

8 that the Albanian government was unable or unwilling to

9 protect him or his family from this blood feud. See

10 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d

11 Cir. 2006). Accordingly, the BIA did not abuse its

12 discretion in denying Haxhari’s motion to reopen because his

13 evidence failed to establish either changed country

14 conditions or a prima facie case for asylum. See 8 U.S.C.

15 § 1229a(c)(7)(C)(ii); INS v. Abudu, 485 U.S. 94, 104-05

16 (1988); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per

17 curiam). 

18 For the foregoing reasons, the petition for review is

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

20 removal that the Court previously granted in this petition

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

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

4
1 oral argument in this petition is DENIED in accordance with

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

3 Circuit Local Rule 34.1(b).

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

5