         09-4216-ag
         Ajdin v. Holder
                                                                                           BIA
                                                                                   A070 894 856
                                                                                   A075 314 837
                                                                                   A075 314 838
                                                                                   A075 314 839
                                                                                   A075 314 840

                                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 16 th day of June, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _______________________________________
12
13       ARIF AJDIN, FATIMA AJDINOVSKA, MIRSADA
14       AJDINOVSKA, SABAN AJDINOVSKA, ALMA
15       AJDINOVSKA,
16                Petitioners,
17
18                         v.                                     09-4216-ag
19                                                                NAC
20
21       ERIC H. HOLDER, Jr., U.S. ATTORNEY
22       GENERAL,
23                Respondent.
24       _______________________________________
25
26       FOR PETITIONERS:                Michael P. Diraimondo, Melville, New
27                                       York.
1    FOR RESPONDENT:           Tony West, Assistant Attorney
2                              General, Richard M. Evans, Assistant
3                              Director, Sada Manickam, Attorney,
4                              Office of Immigration Litigation,
5                              Civil Division, United States
6                              Department of Justice, Washington,
7                              D.C.

1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    review is DENIED.

5        Petitioners, all natives of the former Yugoslavia and

6    citizens of Macedonia, seek review of a September 30, 2009,

7    order of the BIA denying their motion to reopen their

8    removal proceedings.     In re Ajdin, et. al., Nos. A070 894

9    856, A075 314 837-840 (B.I.A. Sept. 30, 2009).     We assume

10   the parties’ familiarity with the underlying facts and

11   procedural history of the case.

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

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

14   (2d Cir. 2006).     An alien who has been ordered removed may

15   file one motion to reopen, but must do so within 90 days of

16   the final administrative decision.     8 U.S.C. § 1229a(c)(7).

17   Here, the BIA properly denied Petitioners’ motion to reopen

18   as untimely and number-barred because they filed it almost


                                     2
1    seven years after their October 2001 final order of removal

2    and it was the third such motion they had filed.     See id.;

3    8 C.F.R. § 1003.2(c)(2).

4        Although the time and numerical limits may be excused

5    when the movant alleges changed country conditions, 8 U.S.C.

6    § 1229a(c)(7)(C)(ii), the BIA reasonably found that the

7    evidence Petitioners submitted merely “reflect[ed] a

8    continuation of circumstances substantially similar to those

9    that existed at the time of [their] hearing.”   Indeed, much

10   of the evidence Petitioners included with their motion was

11   previously available or reflected ongoing civil strife in

12   Macedonia rather than a material change.   Therefore,

13   substantial evidence supports the BIA’s determination that

14   Petitioners failed to establish changed country conditions.

15   See 8 C.F.R. § 1003.2(c)(2), (c)(3)(ii); see also Jian Hui

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

17       Furthermore, a reasonable fact-finder would not be

18   compelled to conclude that the BIA ignored any material

19   evidence that Petitioners submitted.   Wei Guang Wang v. BIA,

20   437 F.3d 270, 275 (2d Cir. 2006).   To the contrary, it is

21   apparent that the BIA considered Petitioners’ evidence, and

22   made reasonable findings based on the record.   See Xiao Ji



                                  3
1    Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d

2    Cir. 2006).

3        Finally, there is no merit to Petitioners’ argument

4    that the BIA’s decision was arbitrary and capricious because

5    it contradicted its findings in another case.     First, the

6    case Petitioners cite was unpublished and, thus, not binding

7    on the BIA.     See Ajdin v. BCIS, 437 F.3d 261, 264-65 (2d

8    Cir. 2006).     Second, unlike in that case, Petitioners here

9    do not assert that the agency applied the wrong legal

10   standard.

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).
19
20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22




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