Opinion
No. 09-4993-ag.
January 6, 2011.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED, in part, and DISMISSED, in part.
Charles Christophe, Christophe Associates, P.C., New York, NY, for Petitioners.
Tony West, Assistant Attorney General; Paul Fiornio, Senior Litigation Counsel; Catherine B. Bye, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: ROGER J. MINER, JOSEPH M. MCLAUGHLIN, and JOSÉ A. CABRANES, Circuit Judges.
SUMMARY ORDER
Petitioners Mujo Mehovic, Nazira Mehovic, and Arjan Mehovic, natives and citizens of the area of the former Yugoslavia that is now Montenegro and ethic Albanian Muslims, seek review of a November 13, 2009, order of the BIA denying their motion to reopen their asylumonly proceedings. In re Mujo Mehovic, Nazira Mehovic, Arjan Mehovic, Nos. A075 897 660/661/662 (B.I.A. Nov. 13, 2009). We assume the parties' familiarity with the underlying facts and procedural history in 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, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA's factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
Because petitioners filed this, their second, motion to reopen, more than ninety days after the denial of their original appeal to the BIA, they were required to show changed circumstances in their country of nationality in order for their motion to be exempt from the applicable time and number limitations. See 8 C.F.R. § 1003.2(c)(2), (c)(3)(ii).
Petitioners contend that the BIA abused its discretion in denying their motion as untimely by failing to consider their evidence regarding changed country conditions. The record does not support this claim, as the BIA explicitly referenced the evidence presented by petitioners. Cf. Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 336 n. 17 (2d Cir. 2006) (holding that, in reviewing the agency's determination for "substantial evidence," we "presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise").
Moreover, the BIA reasonably found that petitioners did not establish changed country conditions. See Jian Hui Shao, 546 F.3d at 169. Although petitioners submitted evidence detailing discrimination against Albanian Muslims in Montenegro and continuing problems in the country, this does not indicate changed conditions because the record included evidence of similar problems at the time of petitioners' initial asylum hearing. See Matter of S-Y-G-, 24 I. N. Dec. 247, 253 (B.I.A. 2007). Petitioners primarily rely on articles about the arrest, and alleged torture, of 14 Albanians accused of terrorism to show changed country conditions. We have previously determined that such evidence does not demonstrate persecution of Albanians. See Lecaj v. Holder, 616 F.3d 111, 117-19 (2d Cir. 2010) (stating that this "single incident of police abuse" shows only "animus against suspected terrorists" and not discrimination against an ethnic minority or religious group). Because substantial evidence supports the BIA's finding that Mehovic failed to demonstrate changed country conditions, the BIA did not abuse its discretion in denying his motion to reopen.
Finally, to the extent that petitioners request review of the BIA's decision not to reopen their proceedings sua sponte, we lack jurisdiction to review the BIA's decision not to exercise its authority to reopen a case sua sponte under 8 C.F.R. § 1003.2(a), because such a decision is "entirely discretionary." Ali 448 F.3d at 518.
For the foregoing reasons, the petition for review is DENIED, in part, and DISMISSED, in part. 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).