     18-1696
     Kacaj v. Barr
                                                                           BIA
                                                                   A095 474 444
                          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 TO 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 Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 3rd day of March, two thousand twenty.
 5
 6   PRESENT:
 7            PETER W. HALL,
 8            SUSAN L. CARNEY,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _____________________________________
12
13   EJLL KACAJ,
14            Petitioner,
15
16                   v.                                  18-1696
17                                                       NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                 James A. Lombardi, New York, NY.
24
25   FOR RESPONDENT:                 Joseph H. Hunt, Assistant Attorney
26                                   General; John S. Hogan, Assistant
27                                   Director; Laura Maroldy, Trial
28                                   Attorney, Office of Immigration
29                                   Litigation, United States
30                                   Department of Justice, Washington,
31                                   DC.
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 DENIED.

5        Petitioner Ejll Kacaj, a native and citizen of Albania,

6    seeks review of a May 8, 2018 decision of the BIA denying his

7    motion to reopen his removal proceedings.           In re Ejll Kacaj,

8    No. A095 474 444 (B.I.A. May 8, 2018).     We assume the parties’

9    familiarity with the underlying facts and procedural history

10   in this case.

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

12   abuse of discretion and its country conditions determination

13   for substantial evidence.    See Jian Hui Shao v. Mukasey, 546

14   F.3d 138, 168–69 (2d Cir. 2008).       An alien seeking to reopen

15   may file one motion to reopen no later than 90 days after the

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

17   (C)(i);   8 C.F.R.   § 1003.2(c)(2).      It   is    undisputed   that

18   Kacaj’s 2017 motion to reopen was number-barred and untimely

19   because it was his second motion to reopen and it was filed

20   more than 12 years after his 2004 order of removal.          However,

21   the time and number limitations for filing a motion to reopen

22   do not apply if the motion is filed in order to apply for
                                     2
1    asylum “based on changed country conditions arising in the

2    country of nationality or the country to which removal has

3    been ordered, if such evidence is material and was not

4    available and would not have been discovered or presented at

5    the previous proceedings.”           8 U.S.C. § 1229a(c)(7)(C)(ii);

6    see also 8 C.F.R. § 1003.2(c)(3)(ii).

7         “In determining whether evidence accompanying a motion

8    to   reopen    demonstrates      a    material     change   in   country

9    conditions that would justify reopening, [the BIA] compare[s]

10   the evidence of country conditions submitted with the motion

11   to those that existed at the time of the merits hearing

12   below.”   In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007).

13   The agency did not abuse its discretion in finding that

14   Kacaj’s evidence was insufficient to establish a material

15   change in conditions in Albania.

16        First,    Kacaj   submitted         country   conditions    evidence

17   showing tensions between political parties and abuses of

18   political     protestors   and       journalists     critical    of   the

19   government.     The agency did not abuse its discretion in

20   finding that this evidence was not material because the agency

21   previously found Kacaj not credible as to his claim that he

22   was a political dissident or active in Albania’s Democratic
                                          3
1    Party.     See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005)

2    (finding no abuse of discretion in denial of reopening where

3    new evidence “did not rebut [underlying] adverse credibility

4    finding”).      In    any    event,   this     evidence      did    not   show

5    conditions that were materially worse than those existing at

6    the time of Kacaj’s 2004 hearing.

7        Second, Kacaj submitted declarations from friends and

8    family in Albania, largely concerning his claims regarding

9    past events.         The agency did not err in assigning this

10   evidence “minimal weight” because the authors were interested

11   parties not available for examination and because of the

12   agency’s prior adverse credibility finding.                   See Y.C. v.

13   Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to

14   agency’s    decision    to   afford       little   weight    to    relative’s

15   letter   from   China    because      it    was    unsworn    and    from   an

16   interested witness); Qin Wen Zheng v. Gonzales, 500 F.3d 143,

17   146-47 (2d Cir. 2007) (holding that the BIA may reasonably

18   rely on an adverse credibility finding in the underlying

19   asylum proceedings in evaluating the evidence presented in

20   support of a motion to reopen).                Even if the agency had

21   afforded this evidence more weight, it did not support the

22   conclusion that conditions had materially worsened for Kacaj
                                           4
1    in Albania since 2004, as the authors alleged that threats

2    against Kacaj and his family had persisted for decades.

3        Because the record supports the BIA’s conclusion that

4    Kacaj     failed   to   demonstrate   a   material   worsening   of

5    conditions for similarly situated people in Albania as needed

6    to excuse the time and number bars to his motion, the BIA did

7    not err in denying his motion to reopen.             See 8 U.S.C.

8    § 1229a(c)(7)(A), (C).      Because this finding is dispositive,

9    we do not reach the BIA’s alternative finding that Kacaj

10   failed to establish prima facie eligibility for relief.          See

11   INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule

12   courts and agencies are not required to make findings on

13   issues the decision of which is unnecessary to the results

14   they reach.”).

15       For the foregoing reasons, the petition for review is

16   DENIED.    All pending motions and applications are DENIED and

17   stays VACATED.

18                                  FOR THE COURT:
19                                  Catherine O’Hagan Wolfe,
20                                  Clerk of Court




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