10-117-ag

Markovic v. Holder

BIA

A073 617 999

A073 618 000

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

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of New

York, on the 26th day of October, two thousand ten.

PRESENT:

DENNIS JACOBS,

Chief Judge,

JON O. NEWMAN,

RALPH K. WINTER,

Circuit Judges.

_____________________________________

HAMID MARKOVIC, NAFIJE DURAKOVIC,

Petitioners, 

 v. 10-117-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONERS: Gregory Marotta, Vernon, NJ.

FOR RESPONDENT: Tony West, Assistant Attorney General;

Emily Anne Radford, Assistant

Director; Christopher P. McGreal,
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Trial Attorney, Office of Immigration

Litigation, Civil Division, United

States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

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

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

review is DENIED.

Petitioners, natives and citizens of Montenegro, seek

review of a December 23, 2009, order of the BIA denying their

motion to reopen. In re Markovic, Nos. A095 617 999/618 000

(B.I.A. Dec. 23, 2009). We assume the parties’ familiarity

with the underlying facts and procedural history of this case.

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

abuse of discretion, mindful of the Supreme Court’s admonition

that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d

515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314,

322-23 (1992)). 

It is beyond dispute that Petitioners’ motion to reopen

was untimely, as it was filed almost seven years after the

BIA’s dismissal of Petitioners’ appeal of their removal order.

See 8 C.F.R. § 1003.2(c)(2). Although Petitioners contend

that the time limitation does not apply to their motion to

reopen because it was “based on changed circumstances arising
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in the country of nationality” and the evidence they submitted

“is material and was not available and could not have been

discovered or presented at the previous hearing,” 8 C.F.R. §

1003.2(c)(3)(ii), their arguments are unavailing.

As an initial matter, as the BIA explicitly referenced

the materials submitted with the motion, there is no

indication that the BIA ignored any material evidence

Petitioners submitted. See Jian Hui Shao v. Mukasey, 546 F.3d

138, 169 (2d Cir. 2008) (recognizing that the Court has

rejected the notion that the agency must “expressly parse or

refute on the record each individual argument or piece of

evidence offered by the petitioner”); see also Xiao Ji Chen v.

U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)

(presuming that the agency “has taken into account all of the

evidence before [it], unless the record compellingly suggests

otherwise”). 

Moreover, contrary to Petitioners’ argument, the record

supports the BIA’s determination that Petitioners failed to

establish that conditions in Montenegro had changed

fundamentally since their merits hearing, as required to

warrant reopening. See Xiao Ji Chen, 471 F.3d at 342 (holding

that the weight afforded to the applicant’s evidence in
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immigration proceedings lies largely within the discretion of

the agency); Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

Cir. 2008) (holding that the BIA’s evaluation of country

conditions evidence submitted with a motion to reopen is

reviewed under the substantial evidence standard).

Petitioners submitted a number of exhibits pertaining to

fourteen men of Albanian ethnicity who were arrested in

Montenegro on charges of terrorism and were allegedly

mistreated. However, that particular incident does not

establish that ethnic Albanians, as a group, are subject to

persecution in Montenegro. See Lecaj v. Holder, No. 09-0768,

2010 WL 3001332, at *5 (2d Cir. Aug. 3, 2010). Other

materials submitted by Petitioners were outdated, irrelevant

to their claims, or uncorroborated. The agency did not abuse

its discretion in choosing not to credit these exhibits. Xiao

Ji Chen, 471 F.3d at 342. 

 Because the BIA reasonably found that Petitioners failed

to establish changed country conditions sufficient to warrant

reopening, its denial of Petitioners’ motion to reopen was not

an abuse of discretion. Because the BIA did not abuse its

discretion by denying the motion as untimely, we do not reach

Petitioners’ argument that they established their prima facie
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eligibility for relief.

For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk