         10-1443-ag
         Bektesevic v. Holder
                                                                                       BIA
                                                                               A078 710 584
                                 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 15th day of June, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                ROBERT D. SACK,
 9                DEBRA ANN LIVINGSTON,
10                       Circuit Judges.
11       ______________________________________
12
13       FIKRET BEKTESEVIC,
14                Petitioner,
15                                                              10-1443-ag
16                              v.                              NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                  Andrew P. Johnson, Law Offices of
24                                        Andrew P. Johnson, New York, New
25                                        York.
26
27       FOR RESPONDENT:                  Tony West, Assistant Attorney
28                                        General; Richard M. Evans, Assistant
29                                        Director; Jeffrey J. Bernstein,
30                                        Attorney, United States Department
31                                        of Justice, Office of Immigration
32                                        Litigation, Washington, D.C.
33
34
35
 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, Fikret Bektesevic, a native and citizen of

 6   the former Yugoslavia, seeks review of a March 19, 2010,
 7   decision of the BIA denying his motion to reopen his removal
 8   proceedings.    In re Fikret Bektesevic, No. A078 710 584

 9   (B.I.A. March 19, 2010).    We assume the parties’ familiarity

10   with the underlying facts and procedural history of the
11   case.

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

13   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d
14   Cir. 2006).    When the BIA considers relevant evidence of

15   country conditions in evaluating a motion to reopen, we

16   review the BIA’s factual findings under the substantial
17   evidence standard.     See Jian Hui Shao v. Mukasey, 546 F.3d

18   138, 169 (2d Cir. 2008).
19       The BIA did not err in denying Bektesevic’s untimely
20   motion to reopen.    “[A] party may file only one motion to

21   reopen deportation or exclusion proceedings . . . and that
22   motion must be filed no later than 90 days after the date on

23   which the final administrative decision was rendered in the
24   proceeding sought to be reopened, or on or before September

25   30, 1996, whichever is later.”      8 C.F.R. § 1003.2(c)(2).


                                     2
 1   Indisputably, Bektesevic’s September 2009 motion was

 2   untimely because it was filed almost four years after the
 3   BIA’s September 2005 decision dismissing his appeal.     The

 4   90-day filing deadline for motions to reopen does not apply,
 5   however, if a motion is “based on changed circumstances

 6   arising in the country of nationality . . . [and] if such
 7   evidence is material and was not available and could not
 8   have been discovered or presented at the previous hearing.”

 9   8 C.F.R. § 1003.2(c)(3)(ii).

10       The BIA reasonably concluded that the evidence
11   Bektesevic submitted in support of his motion was not

12   material, and therefore could not meet the “heavy burden”

13   necessary to demonstrate that reopening was warranted.     See
14   INS v. Abudu, 485 U.S. 94, 104-05 (1988).

15       In support of his motion, Bektesevic submitted a letter

16   from friends and family members stating that, as an ethnic
17   Bosniak, he would suffer discrimination and harassment if

18   returned to Kosovo.   He also submitted several news articles
19   discussing increasing ethnic tensions between Albanians and
20   Serbs in Kosovo.   However, as Bektesevic acknowledges in his

21   brief, he is neither Albanian nor Serbian, and none of the
22   evidence he submitted discussed how conditions for Bosniaks

23   had deteriorated or changed since Kosovo’s declaration of
24   independence.   Accordingly, the BIA did not abuse its

25   discretion in denying his untimely motion to reopen.     See


                                    3
 1   8 C.F.R. § 1003.2(c)(3)(ii) (noting that new evidence

 2   submitted with a motion to reopen must be material); Jian
 3   Hui Shao, 546 F.3d at 169.
 4       For the foregoing reasons, the petition for review is

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

 6   removal that the Court previously granted in this petition

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

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

 9   oral argument in this petition is DENIED in accordance with

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

11   Circuit Local Rule 34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15




                                    4
