         13-3320
         Kimca v. Lynch
                                                                                       BIA
                                                                               A079 128 217
                                                                               A079 128 218
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of May, two thousand fifteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       JOLA KIMCA, EJLDIN KIMCA,
14                Petitioners,
15
16                        v.                                      13-3320
17                                                                NAC
18
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.*
22       _____________________________________
23
24       FOR PETITIONERS:              Kai W. De Graaf, New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Carl McIntyre, Assistant

                 *
               Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
         Attorney General Loretta E. Lynch is automatically substituted
         for former Attorney General Eric H. Holder, Jr.
 1                           Director; Brooke Maurer, Trial
 2                           Attorney, Office of Immigration
 3                           Litigation, United States Department
 4                           of Justice, Washington, D.C.

 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Petitioners Jola and Ejldin Kimca**, natives and

10   citizens of Albania, seek review of the August 27, 2013,

11   decision of the BIA denying their motion to reopen.     In re

12   Jola Kimca, et al., Nos. A079 128 217/218 (B.I.A. Aug. 27,

13   2013).   We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       An alien seeking to reopen proceedings may file one

16   motion to reopen no later than 90 days after the date on

17   which the final administrative decision was rendered.

18   8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

19       The BIA’s regulations prohibit it from reopening

20   proceedings for an alien who has departed.   8 C.F.R.

21   § 1003.2(d).   This Court has narrowed that so-called

22   “departure bar” to sua sponte (i.e., regulatory) reopening.

         **
            The claims of Jola Kimca’s son, Ejldin, are entirely
     derivative of her claim.
                                   2
 1   See Luna v. Holder, 637 F.3d 85, 100-02 (2d Cir.

 2   2011)(invalidating departure bar with respect to statutory

 3   motions to reopen); Zhang v. Holder, 617 F.3d 650, 655-65

 4   (2d Cir. 2010) (upholding departure bar with respect to

 5   regulatory reopening).   So, an alien’s departure from the

 6   United States does not prevent the agency from reopening

 7   proceedings, but only if the alien’s motion to reopen is

 8   meritorious, timely and not number barred.   If, on the other

 9   hand, the departed alien’s motion does not comply with the

10   statute (e.g., it is untimely or number barred), the

11   departure bar applies, and the agency lacks jurisdiction to

12   reopen sua sponte.   See Luna, 637 F.3d at 100-02.

13       Here, there is no dispute that Kimca filed the motion

14   to reopen after departing the United States, and that her

15   motion was untimely as it was filed more than nine years

16   after the BIA's final administrative decision.     See 8 U.S.C.

17   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    The time and

18   number limitations do not apply to a motion to reopen if it

19   is “based on changed circumstances arising in the country of

20   nationality . . . if such evidence is material and was not

21   available and could not have been discovered or presented at

22   the previous hearing.”   8 C.F.R. § 1003.2(c)(3)(ii); see

23   also 8 U.S.C. § 1229a(c)(7)(C)(ii).

                                   3
 1        Kimca argues that the BIA abused its discretion by

 2   failing to consider new and material evidence of changed

 3   conditions in Albania.   We reject this argument as the BIA’s

 4   decision expressly referenced that evidence..   .   See Jian

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

 6   (noting that the BIA does not need to expressly parse or

 7   refute every piece of evidence submitted by the petitioner).

 8   .   The BIA did not abuse its discretion in determining that

 9   evidence of an alleged blood feud was not material because

10   it described violence between two families that was criminal

11   in nature rather than politically motivated violence. See

12   Ndoci v. Holder, 448 F. App'x 141 (2d Cir. 2011) (evidence

13   of a blood feud in Albania did not constitute changed

14   country condition that would justify petitioner’s untimely

15   motion to reopen removal proceedings, where there was no

16   allegation of politically motivated or targeted violence,

17   and no evidence that Albanian government was unable or

18   unwilling to protect the petitioner); see also Melgar de

19   Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999)

20   (finding that general civil strife does not establish a

21   well-founded fear of persecution).   In any event, Kimca did

22   not provide any evidence that the Albanian government was


                                   4
 1   unwilling to protect her from the blood feud.    See

 2   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d

 3   Cir. 2006) (recognizing that private acts can give rise to

 4   persecution if the government is shown unwilling to control

 5   such actions).   Accordingly, the BIA did not abuse its

 6   discretion in denying Kimca's motion to reopen because her

 7   evidence failed to establish changed country conditions.

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

 9   1003.2(c)(3)(ii).

10       For the foregoing reasons, the petition for review is

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

12   removal that the Court previously granted in this petition

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

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

15   oral argument in this petition is DENIED in accordance with

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

17   Circuit Local Rule 34.1(b).

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




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