    13-2766 (L); 13-4098 (Con)
    Kolami v. Holder
                                                                                  BIA
                                                                          A095 356 335
                                                                          A095 356 336
                                                                          A095 356 337
                            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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 13th day of March, two thousand fifteen.

    PRESENT:
             DENNIS JACOBS,
             DEBRA ANN LIVINGSTON,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    VALENT KOLAMI, GENTIANA KOLAMI,
    FRANC KOLAMI,
             Petitioners,

                        v.                                 13-2766 (L);
                                                           13-4098 (Con)
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONERS:                 Michael P. DiRaimondo, DiRaimondo &
                                     Masi, LLP, Melville, NY.
FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
                        General; John S. Hogan, Senior
                        Litigation Counsel; Aimee J.
                        Carmichael, Trial Attorney, Office
                        of Immigration Litigation, United
                        States Department of Justice,
                        Washington, D.C.

    UPON DUE CONSIDERATION of these petitions for review of

Board of Immigration Appeals (“BIA”) decisions, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petitions for review

are DENIED.

    Petitioners Valent Kolami, his wife Gentiana, and their

son Franc, natives and citizens of Albania, seek review of a

July 18, 2013 decision of the BIA denying their second

untimely motion to reopen, In re Valent Kolami, Gentiana

Kolami, Franc Kolami, Nos. A095 356 335/6/7 (B.I.A. July 18,

2013), and an October 25, 2013 decision of the BIA denying

their third untimely motion to reopen, In re Valent Kolami,

Gentiana Kolami, Franc Kolami, Nos. A095 356 335/6/7 (B.I.A.

Oct. 25, 2013).   We assume the parties’ familiarity with the

underlying facts and procedural history.

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

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

(2d Cir. 2006) (per curiam).   An alien seeking to reopen

proceedings is required to file a motion to reopen no later


                               2
than 90 days after the date on which the final

administrative decision was rendered and is permitted to

file only one such motion.   See 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    There is no

dispute that Petitioners’ second and third motions to

reopen, filed in April 2012 and September 2013, were

untimely and number-barred because their orders of removal

became final in 2004.   8 U.S.C. § 1101(a)(47)(B)(i).

Petitioners contend, however, that worsened conditions

accompanying the 2013 Albanian elections and ineffective

assistance of counsel excuse these time and number

limitations.

I.   Ineffective Assistance of Counsel: Dkt. Nos.

     13-2766 (L); 13-4098 (Con)

     The applicable time and number limitations on motions

to reopen may be equitably tolled to accommodate claims of

ineffective assistance of counsel.   Rashid v. Mukasey, 533

F.3d 127, 130 (2d Cir. 2008); Jin Bo Zhao v. INS, 452 F.3d

154, 159-60 (2d Cir. 2006) (per curiam).    However, the

movant is required to demonstrate “due diligence” in

pursuing a claim during “both the period of time before the

ineffective assistance of counsel was or should have been


                              3
discovered and the period from that point until the motion

to reopen is filed.”   Rashid, 533 F.3d at 132.    We have

noted that “there is no period of time which . . . is per se

unreasonable, and, therefore, disqualifies a petitioner from

equitable tolling–or, for that matter, any period of time

that is per se reasonable.”   Jian Hua Wang v. BIA, 508 F.3d

710, 715 (2d Cir. 2007).

      The BIA did not err in finding that Petitioners had not

acted with due diligence because not until nearly thirteen

months after discovering their counsel’s ineffective

assistance did they file a motion to reopen that complied

with Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).

See   Rashid, 533 F.3d at 132-33 (holding that petitioner

failed to exercise due diligence when, after he knew or

should have known of his initial counsel’s alleged

ineffective assistance, he waited 14 months to further

pursue his case); Jian Hua Wang, 508 F.3d at 715 (holding

that waiting 8 months after the receipt of relevant

documents did not demonstrate due diligence).     Although

Petitioners argued that they were unable to file a formal

Lozada complaint after discovering their counsel’s

ineffective assistance because Valent was at risk of being


                              4
imminently removed, during the same time period Gentiana

executed the affidavits in support of Petitioners’ second

and third motions to reopen and filed the attorney grievance

complaint.   It is therefore unclear how Valent’s immigration

detention related to the delay.   Indeed, as the government

points out, Petitioners also pursued two petitions for

review in this Court and Valent filed a district court

habeas action during this time.

    Petitioners also argue that they did not file a formal

Lozada complaint immediately after learning of their

counsel’s ineffective assistance because they believed that

their first motion to reopen based on changed country

conditions would be successful.   However, they fail to

identify any authority suggesting that pursuit of

alternative avenues for relief from removal obviates the

need to diligently pursue ineffective assistance claims.      It

also bears mention that the justifications proffered in

Petitioners’ second and third motions to reopen are contrary

to those advanced in their first motion, which stated that,

by the time they discovered the ineffective assistance, the

statute of limitations for filing a Lozada motion had run.

Based on the foregoing, the BIA’s finding that Petitioners


                              5
failed to establish due diligence was not an abuse of

discretion.

    Because the BIA did not err in denying reopening for

failure to establish due diligence, we decline to consider

the BIA’s alternative rejection of Petitioners’ ineffective

assistance of counsel claim in Dkt. No. 13-4098 (Con) based

on their failure to establish prejudice.

II. Changed Country Conditions:   Dkt. No. 13-4098 (Con)

    The applicable time and number limitations on motions

to reopen may also be suspended 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 hearing.”   8 U.S.C. § 1229a(c)(7)(C)(ii); 8

C.F.R. § 1003.2(c)(3)(ii).   Failure to offer such evidence

is, therefore, a proper ground on which the BIA may deny a

motion to reopen, as is the movant’s failure to establish a

prima facie case for the underlying substantive relief

sought.   See INS v. Abudu, 485 U.S. 94, 104-05 (1988).     When

the BIA considers relevant evidence of country conditions in

evaluating a motion to reopen, we review the BIA’s factual

findings under the substantial evidence standard.   See Jian

Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
                              6
    The BIA did not abuse its discretion in finding that

Petitioners failed to establish materially changed country

conditions on the basis of Dr. Fischer’s updated

declaration.   Xiao Ji Chen v. U.S. Dep’t of Justice, 471

F.3d 315, 342 (2d Cir. 2006) (explaining that the weight

accorded to the applicant’s evidence in immigration

proceedings lies largely within the discretion of the

agency).   Although Dr. Fischer’s updated declaration

described attacks on local Democratic and Socialist Party

heads and two candidates during the 2013 elections, the BIA

reasonably determined that this evidence was not material

because it did not relate to Petitioners or to their

personal circumstances.   See Jian Hui Shao, 546 F.3d at

160-62, 170-72 (concluding that evidence offered in support

of reopening was not material because it did not relate to

similarly-situated individuals).   Moreover, the BIA had

previously considered the remaining portions of Dr.

Fischer’s declaration and found them insufficient to

demonstrate materially changed country conditions, which we

affirmed on appeal in Dkt. No. 12-2817.   The BIA therefore

did not err in finding that Petitioners failed to establish

materially changed conditions on the basis of Dr. Fischer’s

updated declaration.
                              7
    For the foregoing reasons, the petitions for review are

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot.    The pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).    The pending motion to dismiss

this case voluntarily and remand the matter to the BIA is

DENIED.



                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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