                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 08a0241n.06
                                Filed: May 6, 2008

                                             No. 07-3255

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


MARASH KALAJ, et al.,                                      )
                                                           )
          Petitioners-Appellants,                          )
                                                           )   ON PETITION FOR REVIEW
v.                                                         )   OF A DECISION OF THE
                                                           )   BOARD OF IMMIGRATION
MICHAEL B. MUKASEY,                                        )   APPEALS
                                                           )
          Respondent-Appellee.                             )



Before:              BOGGS, Chief Judge; and MARTIN and SILER, Circuit Judges.



          PER CURIAM. Petitioner Marash Kalaj and his family, natives of Albania, moved to

reopen before the Board of Immigration Appeals (BIA) their previously rejected claims of

asylum, withholding of removal, and relief under the Convention Against Torture (CAT), based

on allegedly deteriorating country conditions in Albania and the ineffective assistance of their

previous counsel. The BIA denied their motion to reopen. We affirm.



                                                   I

          This court has addressed this case once before, when it affirmed the BIA’s denial of the

Kalajs’ original petition. See Kalaj v. Gonzales, 185 F. App’x 468 (6th Cir. 2006). We

concluded that there was substantial evidence to support the Immigration Judge’s (IJ) adverse

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credibility finding, and that, even if their testimony were credible, the Kalajs still failed to

demonstrate either past persecution or a well-founded fear of future persecution. Id. at 471-74.

After losing their appeal on the merits, the Kalajs filed an untimely1 motion with the BIA to

reopen proceedings, based on (1) allegedly changed country conditions and (2) ineffective

assistance of their former counsel in presenting their original claim.2



                                                            II

         “Generally, we review the Board’s denial of a motion to reopen for abuse of discretion.”

Allabani v. Gonzales, 402 F.3d 668, 676 (6th Cir. 2005) (citing INS v. Doherty, 502 U.S. 314,

321-22 (1994)). “However, where there is a claim of ineffective assistance of counsel, we

review this question of law de novo.” Ibid.

                                                            A

         With regard to their first argument, an untimely motion to reopen may be granted under 8

U.S.C. § 1229a(c)(7)(C)(ii) if “the motion . . . is based on changed country conditions arising in

the country of nationality . . . if such evidence is material and was not available and would not

have been discovered or presented at the previous proceeding.” See also 8 C.F.R. §

1003.2(c)(3)(ii). Importantly, however, “an alien filing a motion to reopen based on changed

country conditions 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

1
  8 U.S.C. § 1229a(c)(7)(C)(i) states that, subject to limited exceptions, a “motion to reopen shall be filed within 90
days of the date of entry of a final administrative order of removal.” See also 8 C.F.R. § 1003.2(c)(2). The order of
removal here became final when the BIA adopted and affirmed the IJ’s decision on February 3, 2005. See 8 C.F.R.
§ 1241.1. The Kalajs filed their motion to reopen on October 25, 2006, more than a year and a half later.
2
  The Kalajs also argue that the BIA should have reopened removal proceedings against them sua sponte, and that
the BIA’s failure to do so denied them due process. This argument is not reviewable by this court. See Harchenko
v. INS, 379 F.3d 405, 410-11 (6th Cir. 2004) (“[T]his court lacks jurisdiction to find that the BIA abused its
discretion by failing to exercise its discretionary authority to reopen [the petitioner]’s proceedings. . . . The decision
whether to invoke sua sponte authority is committed to the unfettered discretion of the BIA.”) (citing cases).
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individual persecution. . . . The feared persecution must relate to the alien individually, not to

the population generally.” Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (internal

quotation omitted) (emphasis added).

       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 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 home country. See, e.g., Vata v.

Gonzales, 243 F. App’x 930, 947 (6th Cir. 2007) (upholding denial of motion to reopen because

petitioner did not submit “evidence of changed country conditions in Albania[; r]ather, the

allegedly new and material evidence depict[ed] a level of corruption and intolerance that has

plagued Albania throughout the past decade”); Vuthi v. Gonzales, 209 F. App’x 470, 473 (6th

Cir. 2006) (upholding denial of motion to reopen where “reports and articles” were neither

individualized nor indicative of a deterioration of conditions in Albania).

                                                  B

       With regard to the Kalajs’ second argument, there is no explicit statutory or regulatory

authority permitting an untimely motion to reopen based on a claim of ineffective assistance of

counsel, but some courts have held that the 90-day time limit may be equitably tolled to enable a

                                                  3
deserving petitioner to bring such a claim. See, e.g., Iavorski v. INS, 232 F.3d 124, 133 (2d Cir.

2000); Socop-Gonzalez v. INS, 272 F.3d 1176, 1181 (9th Cir. 2001) (en banc). This circuit,

however, “has never, in a controlling and published opinion, followed suit.” Ajazi v. Gonzales,

216 F. App’x 515, 518 (6th Cir. 2007). We need not decide the question, because even if we

were inclined to apply equitable tolling to permit the Kalajs’ claim to go forward, it would still

fail for lack of prejudice. Cf. Miculi v. Ashcroft, 96 F. App’x 338, 340 (6th Cir. 2004) (declining

to address equitable tolling argument because petitioner failed to demonstrate prejudice

regardless).

       In order to prevail on a claim of ineffective assistance of counsel, the petitioner must

both meet the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA

1988), and “show that he or she was prejudiced by the actions or inactions of counsel.” Sako v.

Gonzales, 434 F.3d 857, 863 (6th Cir. 2006) (quoting Matter of Assaad, 23 I. & N. Dec. 553, 556

(BIA 2003)). There is no dispute that the Kalajs adhered to the procedural requirements of

Lozada. But they have utterly failed to demonstrate prejudice. The Kalajs complain that their

former counsel did not give the IJ corroborating documents until the day of their hearing,

whereupon the IJ refused to consider the documents since they were untimely filed. They also

accuse their former counsel of falsifying one document’s notarization, which the IJ attributed to

Mr. Kalaj and formed part of the basis for his adverse credibility finding. Nevertheless, both the

IJ and this court on appeal expressly held that, even presuming the Kalajs’ credibility, their claim

would still fail because they could not demonstrate either past persecution or a well-founded fear

of future persecution. See Kalaj, 185 F. App’x at 472-74. Thus, even if the Kalajs’ former

counsel had not made any of the missteps they tax her with, and presented all of the material



                                                 4
they now wish had been before the IJ, it would have made no difference to the outcome of their

case. They have therefore suffered no prejudice.



                                               III

       The decision of the BIA denying the Kalajs’ untimely motion to reopen is affirmed.




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