    18-454, 19-954
    Kadria v. Barr
                                                                                   BIA
                                                                           A078 280 103

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

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         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 23rd day of July, two thousand nineteen.

    PRESENT:
             JON O. NEWMAN,
             DEBRA ANN LIVINGSTON,
             RICHARD J. SULLIVAN,
                  Circuit Judges.
    _____________________________________

    LAHIM KADRIA,
             Petitioner,
                                                                 18-454,
                     v.                                          19-954
                                                                 NAC
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                   Marialaina L. Masi, Jeffrey
                                      Chase, On the Brief; Michael P.
                                      DiRaimondo, DiRaimondo & Masi,
                                      PC, Bohemia, NY.

    FOR RESPONDENT:                   Joseph H. Hunt, Assistant
                                      Attorney General; Anthony C.
                                      Payne, Assistant Director;
                                      Alexander J. Lutz, Trial Attorney,
                                      Office of Immigration Litigation,
                             United States Department of
                             Justice, Washington, DC.

      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.

      Petitioner Lahim Kadria, a native and citizen of Albania,

seeks review of (1) a January 31, 2018 decision of the BIA

denying a motion to reconsider and reopen, and (2) an April

3, 2019 decision denying a subsequent motion to reopen, In re

Lahim Kadria, No. A078 280 103 (B.I.A. Jan. 31, 2018 & Apr.

3, 2019).        We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

  A. Docket Number 18-454

      Because this petition is timely filed only as to the

BIA’s January 2018 decision denying his motion to reconsider

and reopen, our review is limited to that decision and we may

not   consider    any   challenge       to   the    agency’s   underlying

decisions   ordering    Kadria   removed,          denying   asylum,   and

denying earlier motions to reopen.            See Ke Zhen Zhao v. U.S.

Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).                    We

review the denial of motions to reconsider and reopen for
                                    2
abuse of discretion and any country conditions determinations

for substantial evidence.         Jian Hui Shao v. Mukasey, 546 F.3d

138, 168-69, 173 (2d Cir. 2008).         The BIA properly construed

Kadria’s September 2017 motion as seeking reconsideration

insofar as it challenged the most recent denial of reopening,

and as seeking reopening insofar as it sought to present new

evidence.     See Ke Zhen Zhao, 265 F.3d at 90-91.               For the

reasons discussed below, the BIA did not abuse its discretion

in denying the motion under either construction.

      1.    Motion to Reconsider

      A motion to reconsider must specify errors of fact or

law    in   the   agency’s    prior     decision.        See     8 U.S.C.

§ 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1); see also Ke Zhen

Zhao, 265 F.3d at 90.        Kadria argued that the BIA erred in

finding that his March 2017 motion to reopen did not establish

his prima facie eligibility for relief.           A movant’s failure

to    establish   prima   facie    eligibility   for    the    underlying

relief sought is a proper basis for the BIA to deny reopening.

See INS v. Abudu, 485 U.S. 94, 104 (1988).             To establish his

prima facie eligibility for asylum, Kadria relied on an expert

affidavit prepared by Dr. Bernd Fischer.         The BIA did not err

                                    3
in declining to consider Dr. Fischer’s affidavit insofar as

it discussed Kadria’s claim of past persecution, which had

been denied on credibility grounds.         See Paul v. Gonzales,

444 F.3d 148, 153 (2d Cir. 2006) (“[W]here an asylum applicant

does not file a timely appeal disputing the BIA’s affirmance

of the IJ’s credibility ruling, a motion to reopen does not

provide a collateral route by which the alien may challenge

the validity of the original credibility determination.”).

Further, the BIA did not violate Kadria’s due process rights

in   declining     to   relitigate     Kadria’s     claim     of      past

persecution.     See Yuen Jin v. Mukasey, 538 F.3d 143, 157 (2d

Cir. 2008) (“We hold that an alien who has already filed one

asylum application, been adjudicated removable and ordered

deported, and who has nevertheless remained in the country

illegally for several years, does not have a liberty interest

or property interest in a discretionary grant of asylum.”).

     We also find no error in the BIA’s determination that

Dr. Fischer’s affidavit was not prima facie evidence of a

well-founded     fear   of   future   persecution    on     account    of

Kadria’s membership in the Democratic Party.          Kadria had to

show either a reasonable possibility that he would be singled

                                  4
out for persecution or that the country of removal has a

pattern or practice of persecuting individuals similarly

situated to him.     8 C.F.R. § 1208.13(b)(2)(iii).            Aside from

discussing Kadria’s claim of persecution in the 1990s, Dr.

Fischer addressed general political conditions in Albania and

did not establish any basis to find that Kadria would be

singled     out      for      persecution.               See        8 C.F.R.

§ 1208.13(b)(2)(iii); Jian Xing Huang v. U.S. INS, 421 F.3d

125, 129 (2d Cir. 2005) (“In the absence of solid support in

the record . . . , [an applicant’s] fear is speculative at

best.”).      Specifically,    Dr.       Fischer    states   that    Albania

suffers from corruption and crime, that it is politically

unstable, and that political militants attack each other

physically.    He discusses a few incidents of violence between

members of the Socialist and Democratic Parties, but such

isolated incidents are insufficient to show that Kadria will

be singled out for persecution or that there is a pattern or

practice of persecution of Democratic Party members.                       See

Jian Hui Shao, 546 F.3d at 153, 163-65 (agreeing with the

BIA’s conclusion that isolated incidents of persecution in

country    reports   are   insufficient        to    establish      that    an

                                     5
applicant will be singled out for persecution or a pattern or

practice of persecution); see also In re A-M-, 23 I. & N.

Dec. 737, 741 (BIA 2005) (defining “pattern or practice” as

the “systemic or pervasive” persecution of a group).                             Given

Kadria’s     failure     to    establish         any    error    in        the   BIA’s

conclusion     that    he     did   not       demonstrate      his    prima      facie

eligibility for relief, the BIA did not abuse its discretion

in denying reconsideration.

       2.    Motion to Reopen

       To the extent Kadria’s 2017 motion relied on a further

updated      affidavit      from    Dr.       Fischer,     the       BIA    properly

construed it as a motion to reopen.                     See Ke Zhen Zhao, 265

F.3d    at   90-91.      Kadria     argues       that    the    BIA    abused      its

discretion in declining to consider whether that further

update established changed conditions excusing the limits on

his motion; however, the BIA assumed that Kadria established

such conditions, but again denied reopening on the ground

that Kadria failed to establish his prima facie eligibility

for relief.      Given that a failure to establish prima facie

eligibility for the underlying relief sought is dispositive

of a motion to reopen, see Abudu, 485 U.S. at 104, the BIA

                                          6
was not required to decide whether the affidavit demonstrated

changed country conditions, see INS v. Bagamasbad, 429 U.S.

24, 25 (1976) (“As a general rule courts and agencies are not

required to make findings on issues the decision of which is

unnecessary to the results they reach.”).

     In addition, for the same reasons discussed above, Dr.

Fischer’s further updated affidavit, which again asserted

that Kadria’s past persecution claim was consistent with

country conditions and generally discussed political turmoil

in   Albania,   did   not    establish   Kadria’s   prima   facie

eligibility for relief.

     3.   Validity of Removal Proceedings

     Kadria argues that, under the Supreme Court’s decision

in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the agency

lacked jurisdiction to commence removal proceedings against

him because his Notice to Appear (“NTA”) did not provide a

hearing date or time.       This argument is foreclosed by our

decision in Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir.

2019).*   As set forth in Banegas Gomez, we agree with Matter


* Given our decision in Banegas Gomez, we deny the motion from
the Immigrant Rights Clinic of Washington Square Legal
Services for leave to file an amicus curiae brief.
                               7
of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), in which

the BIA determined that the regulation vesting jurisdiction

does not specify what information must be contained in an

NTA, nor does it require an NTA to specify the time and date

of the initial hearing, “so long as a notice of hearing

specifying this information is later sent to the alien,” 922

F.3d at 112 (quotation marks omitted).             Although Kadria’s

July 2000 NTA did not specify the date and time of his hearing

in    immigration   court,   he   subsequently     received   adequate

notice of his hearings, at which he in fact appeared.

     B. Docket Number 19-954

       This petition challenges the BIA’s denial of a motion to

reopen in which the only argument raised was the Pereira

argument    discussed   above.      Accordingly,    the   petition   is

denied as it is foreclosed by Banegas Gomez, 2019 WL 1768914.

       For the foregoing reasons, the motions for oral argument

and leave to file an amicus curiae brief and the petitions

for review are DENIED.

                                  FOR THE COURT:
                                  Catherine O’Hagan Wolfe
                                  Clerk of Court




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