         10-1988-ag
         Avdijaj v. Holder
                                                                                       BIA
                                                                               A078 713 342
                              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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 26th day of January, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       ______________________________________
12
13       FATON AVDIJAJ,
14                Petitioner,
15                                                              10-1988-ag
16                           v.                                 NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Charles Christophe, New York,
24                                     New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; Bernard A.
29                                     Joseph, Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     of Justice, Washington, D.C.
33
 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       Petitioner, Faton Avdijaj, of unknown nationality,

 6   seeks review of an April 23, 2010, decision of the BIA

 7   denying his motion to reopen his removal proceedings.       In re

 8   Avdijaj, No. A078 713 342 (B.I.A. April 23, 2010).     We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history of the case.

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

12   abuse of discretion.    See Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006).   The BIA did not abuse its discretion in

14   denying Avdijaj’s motion to reopen as untimely.     See id.    A

15   motion to reopen must generally be filed no later than 90

16   days after the date on which the final administrative

17   decision was rendered in the proceedings sought to be

18   reopened.    See 8 U.S.C. § 1229a(c)(7)(C).   There is no

19   dispute that Avdijaj’s motion to reopen, filed in October

20   2009, more than five years after the BIA affirmed the IJ’s

21   denial of his asylum application, was untimely.     See id.

22



                                    2
 1       Furthermore, the BIA did not abuse its discretion in

 2   concluding that Avdijaj failed to submit material evidence

 3   of changed country conditions as required to warrant

 4   consideration of his untimely motion, see 8 U.S.C.

 5   § 1229a(c)(7)(C)(ii), because the evidence he submitted did

 6   not rebut the agency’s prior adverse credibility

 7   determination, see Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.

 8   2005).   Contrary to Avdijaj’s contention, his apology for a

 9   “lapse in judgment” in submitting a fraudulent asylum

10   application does not meaningfully address the adverse

11   credibility determination, which was based on multiple

12   alternative grounds, and is not before us in the instant

13   petition.   See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265

14   F.3d 83, 89-90 (2d Cir. 2001).    Because the BIA did not

15   abuse its discretion in denying Avdijaj’s motion on the

16   grounds that he did not provide “material” evidence, i.e.,

17   evidence relevant to rebut the underlying adverse

18   credibility determination, see Kaur, 413 F.3d at 234, we

19   decline to reach the BIA’s alternative findings that he

20   failed to demonstrate changed country conditions or his

21   prima facie eligibility for CAT relief.    See INS v. Abudu,

22   485 U.S. 94, 104-05 (1988) (recognizing that a movant’s


                                   3
 1   failure to produce material evidence is an independent basis

 2   for the denial of a motion to reopen).

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

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

 8   oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14




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