        11-1191-ag
        Ndoci v. Holder
                                                                                       BIA
                                                                               A098 690 462
                           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 29th day of November, two thousand eleven.
 5
 6      PRESENT:
 7               PIERRE N. LEVAL,
 8               JOSÉ A. CABRANES,
 9               RAYMOND J. LOHIER, JR.,
10                    Circuit Judges.
11      _______________________________________
12
13      AGRON NDOCI,
14               Petitioner,
15
16                        v.                                   11-1191-ag
17                                                             NAC
18      ERIC H. HOLDER, JR., UNITED STATES
19      ATTORNEY GENERAL,
20               Respondent.
21      _______________________________________
22
23      FOR PETITIONER:                Saher J. Macarius, Framingham,
24                                     Massachusetts.
25
26      FOR RESPONDENT:                Tony West, Assistant Attorney
27                                     General; Richard M. Evans, Assistant
28                                     Director; Christina Bechak
29                                     Parascandola, Trial Attorney, Office
30                                     of Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DISMISSED in part and DENIED in part.
 5       Agron Ndoci, a native and citizen of Albania, seeks

 6   review of a March 17, 2011 decision of the BIA denying his

 7   motion to reopen.     In re Agron Ndoci, No. A098 690 462

 8   (B.I.A. Mar. 17, 2010).     We assume the parties’ familiarity

 9   with the underlying facts and procedural history of this

10   case.

11       We review the BIA’s denial of Ndoci’s motion to reopen

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

13   (2d Cir. 2006).     Ndoci’s motion was untimely because it was

14   filed more than three years after the agency’s final order

15   of removal.    See 8 U.S.C. § 1229a(c)(7)(C)(I).   There is no

16   time limitation for filing a motion to reopen if it is

17   “based on changed country conditions arising in the country

18   of nationality or the country to which removal has been

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

20   and would not have been discovered or presented at the

21   previous proceeding.”     8 U.S.C. § 1229a(c)(7)(C)(ii).    The

22   BIA reasonably concluded that Ndoci’s motion to reopen did

23   not meet any of the exceptions to the applicable time

24   limitations.

                                     2
 1       Ndoci argues that the BIA failed to consider new and

 2   material evidence of changed conditions in Albania. We

 3   reject his argument, as the BIA’s decision expressly

 4   referenced that evidence, see Jian Hui Shao v. Mukasey, 546

 5   F.3d 138, 169 (2d Cir. 2008); Xiao Ji Chen v. U.S. Dep’t of

 6   Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006), and the BIA

 7   properly exercised its discretion in determining that it was

 8   not material to Ndoci’s claim for relief.    For example, the

 9   evidence Ndoci submitted describing an alleged blood feud

10   was not material because it described violence between two
11   families rather than politically motivated or targeted

12   violence.    See Melgar de Torres v. Reno, 191 F.3d 307, 314

13   (2d Cir. 1999).   In any event, there was no evidence that

14   the Albanian government was unable or unwilling to protect

15   him from the blood feud.   See Ivanishvili v. U.S. Dep’t of

16   Justice, 433 F.3d 332, 342 (2d Cir. 2006).

17       The BIA also did not abuse its discretion by relying on

18   the underlying adverse credibility determination to decline

19   to credit evidence that depended upon Ndoci’s veracity, such

20   as the unsworn statement that purported to be from his

21   brother.    See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-

22   48 (2d Cir 2007).   As that discredited evidence provided the

23   only support for Ndoci’s assertion that Albanian authorities

                                    3
 1   had threatened to kill him because of his support for an

 2   opposition party in Albania, the BIA did not err in finding

 3   that he failed to demonstrate material changed country

 4   conditions.   See id.

 5       Ndoci also moved to reopen to apply for adjustment of

 6   status.   However, eligibility for adjustment of status is

 7   not an exception to the applicable time limitation on

 8   motions to reopen.      See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.

 9   § 1003.2(c)(3); see also Matter of Yauri, 25 I. & N. Dec.

10   103, 105 (BIA 2009).     Even if we were to construe his motion

11   as one invoking the BIA’s authority to reopen his

12   proceedings sua sponte, we would lack jurisdiction to review

13   the BIA’s discretionary decision not to exercise that

14   authority. See Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.

15   2009); Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

16       For the foregoing reasons, the petition for review is

17   DISMISSED in part and DENIED in part.      As we have completed

18   our review, any stay of removal that the Court previously

19   granted in this petition is VACATED, and any pending motion

20   for a stay of removal in this petition is DISMISSED as moot.

21   Any pending request for oral argument in this petition is

                                      4
1   DENIED in accordance with Federal Rule of Appellate

2   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk
5




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