     Case: 15-60633      Document: 00513967291         Page: 1    Date Filed: 04/25/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 15-60633                                    FILED
                                  Summary Calendar                              April 25, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
LABINOT KURTAJ,

                                                 Petitioner

v.

JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,

                                                 Respondent
                                             -

                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A099 653 543


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Labinot Kurtaj petitions for review of the denial by the Board of
Immigration Appeals’ (BIA) of his second motion to reopen his removal
proceedings as untimely. He argues that his motion was not untimely because
he presented evidence of changed circumstances arising in his native Kosovo
material to his claim for asylum and related relief that was not available and
could not have been discovered or presented at his 2007 removal hearing.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-60633

      “The BIA’s denial of a motion to reopen is reviewed for abuse of discretion
and its factual findings are reviewed for substantial evidence.” Panjwani v.
Gonzales, 401 F.3d 626, 632 (5th Cir. 2005). A party may file only one motion
to reopen deportation proceedings, which must be filed no later than 90 days
after the date on which the final administrative decision was entered in the
proceeding sought to be reopened. 8 C.F.R. § 1003.2(c)(2). However, the time
and numerical limitations for the filing of motion to reopen do not apply to
motions that seek either to apply or to reapply “for asylum or withholding of
deportation based on changed circumstances arising in the country of
nationality or in the country to which deportation has been ordered, if such
evidence is material and was not available and could not have been discovered
or presented at the previous hearing.” § 1003.2(c)(3)(ii). “In determining
whether there has been a material change in country conditions, the BIA
compares the evidence of country conditions submitted with the motion to
those that existed at the time of the merits hearing below.” Zhenghao Liu v.
Holder, 457 F. App’x 446, 447 (5th Cir. 2012) (internal quotation marks
omitted) (citing In re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007)).
      Substantial evidence supports the BIA’s determination that Kurtaj’s
evidence, considered cumulatively with the evidence previously submitted, did
not show that conditions in Kosovo changed materially to his claim for asylum.
See Panjwani, 401 F.3d at 626. His claim was based solely on his allegation
that his life was threatened because he was a witness to a murder. His prior
testimony attempting to link those threats to his political opinion was deemed
not credible. Because the threats of harm were not based on Kurtaj’s political
opinion, the evidence he adduced of changes in the political climate in Kosovo
is immaterial to his claim for asylum and did not entitle him to reopening. See
§ 1003.2(c)(3)(ii).



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                                 No. 15-60633

      Substantial evidence further supports the BIA’s decision that the
documentation Kurtaj adduced described circumstances in Kosovo similar to
those that existed at the time of his removal hearing, with no material change.
See Panjwani, 401 F.3d at 626; § 1003.2(c)(3)(ii).         Finally, the BIA’s
determination that his affidavits did not warrant reopening is supported by
prior evidence that his attempt to inject a political dimension into his asylum
claim was not credible. In light of the preceding, Kurtaj has not shown an
abuse of discretion on the part of the BIA in denying his motion as untimely.
See § 1003.2(c)(1); Panjwani, 401 F.3d at 632. We therefore do not reach the
issue whether he has demonstrated prima facie eligibility for asylum and
related relief based on a well-founded fear of persecution if removed to Kosovo.
      PETITION DENIED.




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