         09-0960-ag
         Hajderlliu v. Holder
                                                                                       BIA
                                                                               A077 935 935
                                                                               A077 935 934



                                 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 11 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                JOHN M. WALKER, Jr.,
 8                JOSÉ A. CABRANES,
 9                BARRINGTON D. PARKER,
10                         Circuit Judges.
11       _____________________________________
12
13       LINDITA HAJDERLLIU, ALSO KNOWN AS
14       LINDITA HAJDERLLI, ALSO KNOWN AS BRIGITA
15       PREUC, ALSO KNOWN AS LINDITA NDREU,
16       ALTIN HAJDERLLI, ALSO KNOWN AS ALTIN
17       MAJDERLLI, ALSO KNOWN AS DOMEN KRASNJA,
18                Petitioners,
19
20                              v.                              09-0960-ag
21                                                              NAC
22       ERIC H. HOLDER, JR., UNITED STATES
23       ATTORNEY GENERAL,
24                Respondent.
25       _____________________________________
26       FOR PETITIONERS:       Charles Christophe, New York, New
27                              York.
 1   FOR RESPONDENT:         Tony West, Assistant Attorney
 2                           General; John W. Blakeley, Senior
 3                           Litigation Counsel; Stefanie
 4                           Notarino Hennes, Trial Attorney,
 5                           Office of Immigration Litigation,
 6                           Civil Division, United States
 7                           Department of Justice, Washington,
 8                           D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

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

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

13   review is DENIED.

14       Lindita Hajderlliu and Altin Hajderlli, natives and

15   citizens of Albania, seek review of a February 24, 2009,

16   order of the BIA denying their motion to reopen. In re

17   Hajderlliu, Nos. A077 935 935/934 (B.I.A. Feb. 24, 2009).

18   We assume the parties’ familiarity with the underlying facts

19   and procedural history of this case.

20       As an initial matter, although Petitioners are

21   challenging the denial of relief in “asylum-only”

22   proceedings, as opposed to an actual removal order, this

23   Court nonetheless has jurisdiction under 8 U.S.C.

24   § 1252(a)(1) because the denial of relief in these

25   circumstances is the functional equivalent of a removal

26   order.   See Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir.

27   2006).   Contrary to Petitioners’ argument we do not have

                                   2
1    jurisdiction over both the BIA’s February 2009 and May 2002

2    orders.   Rather, we have jurisdiction to review only the

3    BIA’s February 2009 order because that is the only order

4    from which Petitioners filed a timely petition for review.

5    See 8 U.S.C. § 1252(b)(1); Ke Zhen Zhao v. U.S. Dep’t of

6    Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).

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

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

9    admonition that such motions are “disfavored.”     Ali v.

10   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

11   Doherty, 502 U.S. 314, 322-23 (1992)).     We review for

12   substantial evidence the BIA’s evaluation of country

13   conditions evidence submitted with a motion to reopen.      Jian

14   Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

15       A party may file only one motion to reopen removal

16   proceedings, and must do so no later than 90 days after the

17   date on which the final administrative decision was rendered

18   in the proceeding sought to be reopened.     8 C.F.R.

19   § 1003.2(c)(1), (2).   It is beyond dispute that Petitioners’

20   motion to reopen was untimely.    However, the time and number

21   limitations do not apply to a motion to reopen that is

22   “based on changed circumstances arising in the country of


                                   3
1    nationality or in the country to which deportation has been

2    ordered, if such evidence is material and was not available

3    and could not have been discovered or presented at the

4    previous hearing.”   8 C.F.R. § 1003.2(c)(3)(ii).     The time

5    and number bars may also be equitably tolled to accommodate

6    claims of ineffective assistance of counsel, provided that,

7    among other things, the movant has exercised “due diligence”

8    in vindicating his or his rights.   See Cekic v. INS, 435

9    F.3d 167, 170 (2d Cir. 2006).

10       Petitioners argue that the BIA failed to properly

11   consider evidence in the record in determining that they did

12   not establish changed country conditions.   This argument is

13   unavailing.   While the BIA has an obligation to consider the

14   “record as a whole,” and may abuse its discretion by denying

15   a motion to reopen without addressing “all the factors

16   relevant to [a] petitioner’s claim,” Ke Zhen Zhao v. U.S.

17   Dep’t of Justice, 265 F.3d 83, 97 (2d Cir. 2001), it is not

18   required to “expressly parse and refute...each

19   individual...piece of evidence offered by the petitioner.”

20   Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006).      The BIA

21   properly considered the record as a whole, reasonably

22   finding that the evidence Petitioners presented was neither


                                     4
1    material nor previously unavailable.       See 8 C.F.R.

2    § 1003.2(c)(3)(ii).     Indeed, Petitioners’ affidavits attest

3    to events that purportedly occurred while they were still in

4    Albania.    Moreover, much of the evidence related to the same

5    claim an Immigration Judge had previously found not

6    credible.    See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-

7    48 (2d Cir. 2007).

8        With respect to Petitioners’ ineffective assistance of

9    counsel claim, they failed to challenge the BIA’s due

10   diligence finding in their opening brief, raising it for the

11   first time in their reply brief.       Accordingly, we deem any

12   such argument waived.     See McCarthy v. S.E.C., 406 F.3d.

13   179, 186 (2d Cir. 2005); Yueqing Zhang v. Gonzales, 426 F.3d

14   540, 541 n.1, 545 n.7 (2d Cir. 2005).       Because the BIA’s due

15   diligence finding was alone a proper basis upon which to

16   reject Petitioners’ ineffective assistance of counsel claim,

17   we need not reach their other arguments.       See Rabiu v. INS,

18   41 F.3d 879, 882 (2d Cir. 1994); Jian Hua Wang v. BIA, 508

19   F.3d 710, 715 (2d Cir. 2007).       Even if we were to reach

20   their arguments, we would find no error in the BIA’s

21   conclusion that Petitioners failed to exercise due diligence

22   in the more than six years they sought to toll.       See


                                     5
1    Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000).

2        For the foregoing reasons, the petition for review is

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

4    removal that the Court previously granted in this petition

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

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

7    oral argument in this petition is DENIED in accordance with

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

9    Circuit Local Rule 34.1(b).

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




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