IMG-104                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-3570
                                      ___________

                             HAXHI PELLUMB SADIKU;
                              ADELINA YLLI SADIKU,
                                               Petitioners
                                       v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent
                    ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                      (Agency Nos. A073-616-135, A073-616-136)
                     Immigration Judge: Honorable Henry S. Dogin
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 22, 2012
                Before: FISHER, WEIS AND BARRY, Circuit Judges

                            (Opinion filed : August 28, 2012 )
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM.

       Haxhi Pellumb Sadiku and Adelina Ylli Sadiku petition for review of the Board of

Immigration Appeals’ (“BIA”) denial of their motion to reopen. For the following

reasons, we will deny the petition for review.

       Haxhi Pellumb Sadiku and Adelina Ylli Sadiku, citizens of Albania, entered the
United States on visitor visas. However, they both overstayed and were placed in

removal proceedings pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). They

conceded removability but applied for asylum, withholding of removal, and relief under

the Convention Against Torture (“CAT”), claiming a fear of persecution on account of

political opinion. 1

       At a hearing before an Immigration Judge (“IJ”) in 2000, Sadiku contended that he

feared persecution based on his opposition to the Democratic Party of Albania. He

explained that, in 1990, he had supported and was a member of the Party. However, by

1992, he was disaffected and no longer a member. Sadiku testified that in the summer of

1993, when the Democratic Party was in power, protesting members of the Socialist

Party were beaten by the police near his store. He attempted to intervene, but the police

called him a communist and beat him. Sadiku also testified that during the May 1996

election, he refused a request by members of the Democratic Party to stuff ballot boxes.

He claimed that as a result of his refusal, he was stabbed by three men. He testified that

he went into a coma and was hospitalized. Soon after these events, he said, his store was

burned down. He fled Albania in September 1996.

       The IJ denied relief, finding Sadiku incredible (and that the conditions had

changed in Albania). The IJ noted discrepancies between Sadiku’s testimony, his asylum

application, and the country report. The IJ found much of his testimony about the

       1
         For simplicity, we will now refer only to Haxhi Pellumb Sadiku, as he is the
lead petitioner. Adelina Ylli Sadiku sought derivative asylum, withholding, and CAT
relief.
                                             2
Democratic Party, specifically the incidents regarding the May 1996 election and the

burning of his store, to be implausible. Additionally, the IJ was concerned about

inconsistencies regarding Sadiku’s entry into the United States. The BIA dismissed his

appeal in 2003, agreeing with the IJ’s adverse credibility finding and noting in particular

that “[Sadiku] lacked credibility regarding events central to his claim, such as the length

of his detention, his party membership, and his entry into the United States.” 2 Notably,

Sadiku did not petition for review of this decision.

       In 2007, Sadiku filed a motion to reopen, alleging ineffective assistance of

counsel. 3 The Board denied the motion, and we denied the subsequent petition for

review. See Sadiku v. Att’y Gen., 278 F. App’x 94 (3d Cir. 2008) (nonprecedential).

       In March 2011, Sadiku filed a second motion to reopen, alleging changed country

conditions. He contended that he was at greater risk of persecution now that the

Democratic Party had returned to power in Albania. The Board denied the motion,

noting the prior finding that Sadiku lacked credibility regarding events central to his

claim, including his party membership, and concluding that Sadiku had therefore not

established that the changes in Albania were material enough as to him as to make his

untimely motion proper. 4 The Board rejected the motion to the extent Sadiku raised a


       2
           Sadiku also testified that he and his family had been detained in a labor camp.
       3
         Adelina Ylli Sadiku did not join in the motion to reopen filed in 2007.
       4
         The Board also denied the motion to reopen as number-barred as to the lead
petitioner.

                                              3
claim of ineffective assistance of a non-attorney and declined to exercise its authority to

reopen proceedings sua sponte. Sadiku then petitioned for review. In his brief, Sadiku

argues that the BIA erred in its 2003 adverse credibility determination and that the

adverse credibility determination does not bar his motion to reopen. 5

       We have jurisdiction to review the BIA’s denial of Sadiku’s motion to reopen

pursuant to INA § 242(a), 8 U.S.C. § 1252(a). We lack jurisdiction, however, to review

the BIA’s original 2003 decision, which affirmed the IJ’s adverse credibility

determination, because Sadiku did not file a timely petition for review of that decision.

See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1) (30 days to file a petition for review); Stone

v. Immigration & Naturalization Serv., 514 U.S 386, 394-406 (1995). (We also lack

jurisdiction over the BIA’s 2007 denial of reopening.) The only matter properly before

us is the BIA’s most recent denial of reopening, as Sadiku’s petition for review was filed

within 30 days of that decision.

       We review the BIA’s denial of reopening for abuse of discretion only. We will

not disturb the BIA’s decision unless it is “arbitrary, irrational, or contrary to law.” Guo

v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004). “As a general rule, motions to reopen are

granted only under compelling circumstances.” Id. at 562 (citation omitted). An alien

generally may file only one motion to reopen and must file the motion with the BIA “no


       5
        Sadiku does not specifically argue any claims related to reopening his
proceedings to apply for CAT relief. Nor does he argue anything related to the claim he
made to the BIA about the ineffective assistance of a non-attorney. Therefore, we do not
consider these questions. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005).
                                              4
later than 90 days after the date on which the final administrative decision was rendered.”

8 C.F.R. § 1003.2(c)(2). Sadiku’s motion to reopen, filed more than eight years after the

final administrative order, was therefore untimely. However, the time bar does not apply

to motions that rely on evidence of changed country conditions arising in the country of

nationality, if such evidence is material and was not available and could not have been

discovered or presented at the previous hearing. INA § 240(c)(7)(C)(ii), 8 U.S.C. §

1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).

       Sadiku argues that the return to power of the Democratic Party in Albania in 2009

constituted new and previously unavailable evidence demonstrating his entitlement to

relief. His new motion to reopen therefore seemingly implicated his original allegation of

persecution by the Party and its members. In such circumstances, courts have found it

reasonable for the Board to expect new evidence to rebut the prior adverse credibility

finding. See, e.g., Kaur v. Bd. of Immigration Appeals, 413 F.3d 232, 234 (2d Cir. 2005)

(per curiam). In the absence of such evidence, the Board can plausibly conclude that the

changed country conditions are simply not material for the alien. See id.

       Sadiku argues, though, that there was no need for him to submit evidence that

might have rehabilitated his credibility because the prior adverse credibility

determination was actually not relevant to his new motion to reopen. See Guo, 386 F.3d

at 562 (prior adverse credibility finding with respect to a religious persecution claim was

not relevant to a subsequent motion to reopen asserting a claim based on China's coercive

population control policies). In this vein, he admits, as he must, that his motion to reopen
                                               5
was based on his fear of persecution as a result of his political opinion, as illustrated by

the May 1996 stabbing that occurred after he opposed the Democratic Party. See

Petitioner’s brief at 28 (“[t]he claim . . . is that he is afraid of persecution in Albania

because he was stabbed on May 26, 1996”). But he contends that that story of

persecution was actually unrelated to the specific things the Board found he had testified

inconsistently about—his dates of detention, his past party membership, and his entry

into the United States.

       We do not believe the Board needed to view the prior adverse credibility so

narrowly, however. In the original removal proceeding, the IJ found that Sadiku’s story

was simply unbelievable; on appeal, the Board agreed. See A.R. 478 (the IJ, indicating

that “the Court’s finding is based upon credibility. I don’t believe essentially his story . .

. . I do not believe that.”); A.R. 422 (“[w]e agree with the Immigration Judge’s findings

concerning credibility”). The specific examples given by the Board were reasons that it

did not believe Sadiku’s story of persecution generally, not simply stray aspects of a story

that it otherwise found essentially believable. Given this, we must conclude that the

Board was within its rights to expect Sadiku’s new motion to reopen, rooted in the 1996

stabbing, to make some effort to rehabilitate his credibility. See Kaur, 413 F.3d at 234.

       Moreover, the evidence Sadiku presented with his motion to reopen—which

included documents demonstrating that he assisted the Government with a criminal

investigation, his electrocardiogram, a 2009 country report, proof of recent Socialist Party

membership, tax forms, Social Security forms, and insurance cards—did not rehabilitate
                                                6
his credibility. Those documents simply did not address the story of persecution that

Sadiku presented originally and that was found to be unbelievable. Accordingly, we

cannot say the Board abused its discretion in denying Sadiku’s motion to reopen on the

basis that he had failed to show that the changes in Albania were material to his claims.

See INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii); Kaur, 413 F.3d at 234.

       For these reasons, we will deny the petition for review.




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