                              NOT RECOMMENDED FOR PUBLICATION
                                     File Name: 09a0475n.06

                                                   No. 08-3702
                                                                                                       FILED
                                UNITED STATES COURT OF APPEALS                                      Jul 09, 2009
                                     FOR THE SIXTH CIRCUIT                                  LEONARD GREEN, Clerk

EDMOND BEDALLI,                                        )
LJUBICA BEDALLI,                                       )
JULJAN BEDALLI, and                                    )    PETITION FOR REVIEW OF THE
ANA BEDALLI,                                           )    BOARD OF IMMIGRATION APPEALS
                                                       )
         Petitioners,                                  )    OPINION
                                                       )
v.                                                     )
                                                       )
ERIC H. HOLDER, JR.,                                   )
                                                       )
         Respondent.                                   )
                                                       )

         Before: MOORE and GILMAN, Circuit Judges; and PHILLIPS, District Judge.*

         THOMAS W. PHILLIPS, District Judge. Petitioner Edmond Bedalli, a native Albanian

and citizen of Montenegro,1 seeks review of the order of the Board of Immigration Appeals (“BIA”)

denying his motion to reopen asylum proceedings and additionally alludes to review of the denial

of his motion to reconsider the asylum proceedings. Petitioner initially applied for asylum and

alternatively for withholding of removal, which the immigration judge below denied and the Board

of Immigration Appeals (“BIA”) affirmed without opinion. Over four years later, petitioner moved




         *
          The Hon. Thomas W . Phillips, United States District Judge for the Eastern District of Tennessee, sitting by
designation.

         1
          Bedalli’s wife Ljubica and children Juljan and Ana are included as petitioners. They are dependent on
Edmond, however, and for simplicity’s sake, references in the record and herein are solely to Edmond and the singular
“petitioner.”
to reopen these proceedings, which motion the BIA denied as untimely on May 7, 2008. Petitioner

separately filed a motion to reconsider on June 3, 2008, which the BIA denied on January 15, 2009.

       For the reasons set forth below, we DENY the petition for review.


                                        I. BACKGROUND

       Petitioner and his family are ethnic Albanians who formerly lived in Montenegro, of the

former Yugoslavia. Petitioner alleges that he and his extended family have suffered a “long history

of persecution at the hands of the communists and subsequent socialist governments” because of

their activity in anti-communist Albanian politics. After moving to Montenegro in the early 1990s,

petitioner was placed in the military reserves. On or about May 4, 1999, he received a draft notice

calling him to active duty, which petitioner ignored. Accordingly, on or about May 22, 1999, the

military police arrived at his house to arrest him. Although petitioner initially complied voluntarily,

he later escaped custody and went into hiding. After fleeing to Italy, petitioner entered the United

States via Philadelphia in August 1999.

       On March 3, 2000, petitioner applied for asylum, withholding of removal under the

Immigration and Naturalization Act, and protection under the United Nations Convention Against

Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. Petitioner

claimed he would be incarcerated for evading military service and persecuted as an ethnic Albanian

were he denied asylum and removed from the United States. His family having entered the United

States in March 2000, all four family members were served with a Notice to Appear on or about

January 31, 2001.




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       The immigration judge (“IJ”) denied petitioner’s application. First, the IJ held that petitioner

had not met the standards for granting asylum, for which the applicant bears the burdens of proof and

persuasion under 8 U.S.C. § 1158(b)(1)(B). Asylum may be granted if the applicant is determined

to be a refugee. Id. § 1158(b)(1)(A). The IJ found that petitioner failed to meet this definition,

having shown neither past persecution or a well-founded fear of future persecution, 8 C.F.R. §

208.13(b), as Slobodan Milosevic had fallen from power, there was general amnesty for military

service evaders in both Serbia and Montenegro, and in any event it was reasonable to expect

petitioner to return to his house in Montenegro, where he would be safe. Furthermore, petitioner had

not established that there was a pattern or practice of persecuting Albanians in Montenegro. For

these same reasons, the IJ also denied petitioner’s application for withholding of removal under the

Immigration and Naturalization Act. See id. § 208.16(b) (standards for withholding of removal).

The IJ likewise denied petitioner’s application for protection under the UN Convention Against

Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, as petitioner

had not shown any evidence of past torture or of gross, flagrant, or mass violations of human rights

and, in any event, there was evidence that petitioner could relocate elsewhere and avoid such

persecution. Finally, the IJ denied petitioner’s application for voluntary departure (applicable to

Edmond only, as the remaining family members were not statutorily eligible for voluntary departure)

and ordered the removal of petitioner and his family members. On October 29, 2003, the BIA

affirmed this decision without opinion, and on February 8, 2005, this court denied Bedalli’s petition

for review. Bedalli v. Gonzales, No. 03-4524.

       On February 22, 2008, petitioner filed a motion to reopen with the BIA. Although motions

to reopen must generally be filed within ninety days of the date on which the final administrative


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decision was rendered, this time limitation does not apply, inter alia, “to a motion to reopen

proceedings ... [t]o apply or reapply for asylum or withholding of deportation based on changed

circumstances arising in the country of nationality or in the country to which deportation has been

ordered, if such evidence 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). Petitioner argued that circumstances

changed in Montenegro following its declaration of independence from the country then known as

Serbia and Montenegro, the former Yugoslavia, in 2006, and Kosovo’s declaration of independence

from Serbia in 2008. In support of his motion, petitioner filed, among other things, a 1995 Response

to Information Request by the INS Resource Information Center in Washington, D.C., contending

that ethnic Albanians were at risk if conscripted into the Serbian army or if they avoided

conscription. Petitioner further argued that the Montenegrin government was persecuting ethnic

Albanians, three of whom are naturalized U.S. citizens, by falsely arresting them as terrorists so that

it could subject them to detention and torture. Finally, petitioner cited the demonstrations and riots

against Albanians and the United States following Kosovo’s declaration of independence on

February 17, 2008 and the United States’s support thereof as evidence that he would be persecuted

upon his return.

       On May 7, 2008, the BIA denied the motion to reopen as untimely. It found that petitioner

and his family had “failed to demonstrate how these circumstances would objectively affect their

claim of persecution or torture.”       Because petitioner had not adequately shown how the

circumstances cited would affect him, the BIA found that the evidence was “inadequately material”

and therefore petitioner was not subject to the exception to the ninety-day deadline. Petitioner then

filed a motion to reconsider on June 3, 2008, which was denied on January 15, 2009.


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       The petition for review, filed on June 6, 2008, cites only the May 7, 2008 decision of the BIA

denying Bedalli’s motion to reopen. Petitioner now argues, albeit in cursory references without

elaboration, that the motion to reconsider should have been granted. The Attorney General (“AG”)

opposes the petition, arguing that petitioner has not shown changed circumstances; that even if he

had, they are not material; and that petitioner has failed to meet his burden of showing that the

information was not previously available, particularly with regard to the 1995 report. The AG

further argues that the BIA’s denial of petitioner’s motion to reconsider is not properly before this

court for review.


                                         II. ANALYSIS

A.     Standard of review

       “The denial of a motion to reopen or reconsider a removal order is reviewed for an abuse of

discretion.” Huang v. Mukasey, 523 F.3d 640, 654 (6th Cir. 2008) (quoting Denko v. INS, 351 F.3d

717, 723 (6th Cir. 2003)). “This Court will find an abuse of discretion if the denial of the motion

to reopen [or reconsider] ‘was made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis such as invidious discrimination against a

particular race or group.’ ” Bi Feng Liu v. Holder, 560 F.3d 485, 490 (6th Cir. 2009) (quoting

Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)).

B.     Motion to Reopen

       A motion to reopen must generally be filed within ninety days after the issuance of the final

administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R § 1003.2(c)(2). There are few

exceptions to this deadline; applicable to the instant case is an exception for a reapplication “for



                                                -5-
asylum or withholding of deportation based on changed circumstances arising in the country of

nationality or in the country to which deportation has been ordered, if such evidence 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); see also 8 U.S.C. § 1229(c)(7)(C)(ii). “In order to justify the reopening

of proceedings based on changed country conditions, the movant ‘cannot rely on speculative

conclusions or mere assertions of fear of possible persecution, but instead must offer reasonably

specific information showing a real threat of individual persecution.’ ” Al Roumy v. Mukasey, 290

F. App’x 856, 859 (6th Cir. 2008) (quoting Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004)).

       In support of his motion to reopen, petitioner submitted a 1995 report regarding the risks

ethnic Albanians face if conscripted into the army or if they avoid being conscripted; a 2007 report

from the Office of the Coordinator for Counterterrorism of the U.S. Embassy regarding terrorism and

counterterrorism in Montenegro and specifically discussing the September 9, 2007 arrest of fourteen

ethnic Albanians; an Amnesty International report on Montenegro, likewise discussing the events

of September 9, 2007; a report from the Albanian American Civic League entitled, “The Albanian

American Civic Condemns the Illegal Arrest and Torture of 14 Albanians, Three of Them U.S.

Citizens, in Montenegro: Calls on the U.S. Government to Prevent a Cover-Up”; an article from the

Detroit Free Press reporting on two of the three U.S. citizens arrested, who were Michigan residents;

a news article by the Oakland Press about the third U.S. citizen arrested and his family’s struggle for

his release; and the affidavit of Prenik Camaj, a family friend and expert on the former Yugoslavia.

       The BIA found these submissions were insufficiently material to petitioner’s claim and

denied petitioner’s motion on that basis, not specifically addressing whether petitioner had

demonstrated that circumstances had changed. The BIA held:


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        The respondents now submit evidence that various United States citizens have been
        arrested as terrorists in Montenegro. However, the respondents have failed to
        demonstrate how these circumstances would objectively affect their claim of
        persecution or torture. While the government of Montenegro might be aware of the
        respondents’ return to the country, we do not find that the respondents have
        demonstrated that such conditions have reasonably created a likelihood that they
        would be persecuted or tortured, and we, therefore, find that the evidence submitted
        in the respondents’ motion is inadequately material to their claim.

        As an initial matter, the first exhibit, a 1995 report regarding the risks ethnic Albanians face

if they, like petitioner, avoid conscription in the army, was clearly available at the time of petitioner’s

underlying application for asylum and withholding of removal and is therefore not considered as

evidence of changed circumstances. See 8 C.F.R. § 1003.2(c)(3)(ii) (ninety-day time limitation does

not apply if evidence of changed circumstances is both material and “was not available and could

not have been discovered or presented at the previous hearing”). While the BIA did not specifically

exclude this evidence, neither did the BIA explicitly reference it in its opinion. The opinion instead

focuses on the materiality of evidence of the September 9, 2007 arrests of fourteen ethnic Albanians,

which primarily comprises the remainder of petitioner’s submissions. This court will likewise focus

its analysis on the remaining evidence, with the specific finding that the 1995 report should not be

considered.

        With regard to whether the BIA abused its discretion in finding that the remainder of the

evidence was not material, the case of Kalaj v. Mukasey, 276 F. App’x 465 (6th Cir. 2008) (per

curiam), is particularly instructive. The Kalajs were native Albanians seeking asylum or withholding

of removal. In affirming the order of the BIA denying the Kalajs’ motion to reopen, we found:

        The Kalajs’ proffered “evidence” falls woefully short of this standard. It consists of
        a random collection of Internet articles principally describing on-going political
        tension between the ruling Democrats and the opposition Socialists in Albania, along
        with two country reports (one from the U.S. State Department and a second from a


                                                   -7-
        now-defunct human rights organization) describing both positive and negative
        developments in Albania’s recent human rights record. There is nothing even
        remotely individualized in these documents, and we will not find that the BIA abused
        its discretion in refusing to reopen a case when presented with such equivocal and
        anecdotal evidence of changed country conditions. We have repeatedly rejected
        similar attempts by Albanian petitioners to reopen their asylum cases based on
        largely unsubstantiated allegations of worsening conditions in their country.

Id. at 467.

        Similarly, in Grishaj v. Gonzales, petitioner was an ethnic Albanian from Kosovo. Grishaj

v. Gonzales, 192 F. App’x 493, 494 (6th Cir. 2006). The court, inter alia, upheld the BIA’s denial

of his motion to reopen, which he had supported with an updated report on the status of political and

human rights conditions in Kosovo, because the submitted documents “did not offer material

evidence sufficient to change the original finding that Grishaj has no well-founded fear of future

persecution.” Id. at 498.

        Likewise, in Krcic v. Gonzales, petitioners, ethnic Albanians and citizens of Montenegro, had

moved to reopen their proceedings based in part on worsening conditions in Serbia and Montenegro.

Krcic. v. Gonzales, 186 F. App’x 541, 541 (6th Cir. 2006) (per curiam). Petitioners substantiated

their motion to reopen “principally [with] articles and press releases describing the 2003

assassination of Prime Minister Zoran Djindjic, which led to a 42 day state of emergency.” Id. at

542. We upheld the BIA’s denial of the motion to reopen, finding that “there [was] nothing in the

record to connect that assassination to the Krcics or to rebut the finding of the Board that ... ‘[t]he

Report does not indicate widespread actions against ethnic Albanians in Montenegro.’” Id. at 542-43

(quoting BIA opinion below). Accordingly, we did not find that the BIA had abused its discretion

in denying the motion to reopen. Id. at 543.




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        These cases demonstrate a general pattern of upholding the BIA’s denial of a motion to

reopen where the petitioner had substantiated the untimely motion with generalized news articles and

reports. In the instant case, the evidence submitted by petitioners is of a substantially similar nature,

consisting primarily of news articles and other accounts of the September 9, 2007 arrest of fourteen2

ethnic Albanians, three of whom are U.S. citizens, for alleged terrorist activities in Montenegro.

Petitioner has argued that the cited grounds of terrorism for this arrest was merely a pretense to allow

for the persecution and torture of these ethnic Albanians. He then extrapolates from this apparently

isolated incident, arguing that it demonstrates “that Albanians returning to Montenegro[] from

Albania or the United States run the risk of being arrested, tortured and thrown into jail.”

Accordingly, petitioner argues, he has proven that he has a well-founded fear of future persecution

should he return to Montenegro.

        Yet this is pure conjecture. Even assuming arguendo the illegality of these arrests, petitioner

has shown nothing to connect this incident to his plight. See Krcic, 186 F. App’x at 542 (“[T[here

is nothing in the record to connect that assassination to the Krcics ....”). Moreover, his allegation

that ethnic Albanians are being persecuted and tortured on a widespread basis and he therefore is

certain to be persecuted and tortured is without substantiation. Even if it were substantiated, “[t]he

feared persecution must relate to the alien individually, not to the population generally.” Harchenko

v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (quotation marks omitted).

        The most individualized information petitioner offered the BIA was the affidavit of Prenik

Camaj. Mr. Camaj elaborates on petitioner’s family history and alleged history of persecution in

Albania and Montenegro.               This information, however, does not demonstrate any changed


        2
            The Amnesty International report submitted by petitioner states that seventeen individuals were arrested.

                                                           -9-
circumstances since petitioner’s initial application for asylum, and insofar as it discusses the events

of September 9, 2007 and the ongoing persecution of ethnic Albanians, again, petitioner has failed

to show how such incidents are material to his individual case.

       In sum, the evidence proffered by petitioner shows no “reasonably specific information

showing a real threat of individual persecution.” Harchenko, 379 F.3d at 410 (quotation omitted).

Accordingly, the BIA offered a rational explanation for denying petitioner’s motion to reopen,

namely, that even assuming he had proven changed circumstances, he had not proven the materiality

of those circumstances to his individual case. The BIA did not abuse its discretion, and therefore

we affirm the decision of the BIA to deny petitioner’s motion to reopen.

B.     Motion to Reconsider

       Petitioner references his motion to reconsider in his brief on appeal, including it as an issue

in his Statement of the Issues and arguing in his Conclusion that the BIA “erred in not [r]eopening

Petitioner’s case as the factual basis for Petitioner’s Motion to Reopen and Motion for

Reconsideration demonstrated the persecution and clear prejudice Petitioner suffered.” Yet because

he did not include his motion to reconsider in his petition for review, there is somewhat of an

ambiguity as to whether petitioner is attempting to petition for review thereof. To the extent he is,

we find that this court does not have jurisdiction to consider the BIA’s denial of petitioner’s motion

to reconsider.

       8 U.S.C. § 1252(a)(5) provides that “[n]otwithstanding any other provision of law ... a

petition for review filed with an appropriate court of appeals in accordance with this section shall

be the sole and exclusive means for judicial review of an order of removal entered or issued under

any provision of this chapter.” A petition for review must be filed within thirty days after the date


                                                 -10-
of a final order of removal. Id. § 1252(b)(1). A separate petition must be filed for each order,

however, or the petitioner waives review thereof. More specifically,

        An order of deportation becomes final when issued, irrespective of whether a motion
        to reopen or reconsider subsequently is filed. See Stone v. INS, 514 U.S. 386, 395
        (1995) (holding that the filing of a motion to reopen or reconsider does not affect the
        finality of an underlying deportation order). As a consequence, a party who seeks
        reopening or reconsideration must file separate petitions for review within 30
        days of each final order. Id. A party who fails to file a timely petition for review
        of an order waives appellate review of that order, as the statutory time for filing is
        both mandatory and jurisdictional. Id. at 405 (citing Missouri v. Jenkins, 495 U.S.
        33, 45 (1990)).

Qeraxhiu v. Gonzales, 206 F. App’x 476, 479 (6th Cir. 2006) (emphasis added) (internal citations

to other case reporters removed).

        In the instant case, on June 3, 2008, petitioner filed a motion to reconsider. His petition for

review, filed on June 6, 2008, identifies only an appeal of the BIA’s May 7, 2008 decision dismissing

his motion to reopen as untimely. Moreover, petitioner has not filed a timely petition for review of

the BIA’s order denying his motion to reconsider. Accordingly, there is no means of review of this

order. 8 U.S.C. § 1252(a)(5) (“Notwithstanding any other provision of law ... a petition for review

filed with an appropriate court of appeals in accordance with this section shall be the sole and

exclusive means for judicial review of an order of removal entered or issued under any provision of

this chapter ....”); id. § 1252(b)(1) (“The petition for review must be filed not later than 30 days after

the date of the final order of removal.”); Qeraxhiu, 206 F. App’x at 479; see also, e.g., Mu Ju Li v.

Mukasey, 515 F.3d 575, 578 (6th Cir. 2008) (discussing Stone v. INS and noting that “[a]ccording

to the [Supreme] Court, the statute’s consolidation provision [8 U.S.C. § 1252(b)(6)] contemplates

that if the BIA issues an order denying the motion to reconsider, it is a separate order requiring a

separate petition for review.”).


                                                  -11-
                                       III. CONCLUSION

       Because petitioner has not shown that the denial of his motion to reopen was made without

a rational explanation, inexplicably departed from established policies, or rested on another

impermissible basis, we DENY his petition for review. In addition, since petitioner failed to petition

for review of the order denying his motion to reconsider, this court does not have jurisdiction over

the review thereof.




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