         11-4656                                                                           BIA
         Macelara v. Holder
                                                                            A028 906 621



                               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 26th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSEPH M. McLAUGHLIN,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _____________________________________
12
13       SKUMBIN MACELARA,
14                Petitioner,
15
16                            v.                                11-4656
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Michael P. DiRaimondo, Melville, New
24                                      York.
25
26       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
27                                      Attorney General; William C.
28                                      Peachey, Assistant Director; Flor M.
29                                      Suarez, Trial Attorney, Office of
30                                      Immigration Litigation, Civil
31                                      Division, United States Department
32                                      of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED.

 5       Skumbin Macelara, a native and citizen of the former

 6   Yugoslavia, in what is now Macedonia, seeks review of an

 7   October 13, 2011, order of the BIA denying his motion to

 8   reopen. In re Skumbin Macelara, No. A028 906 621 (B.I.A.

 9   Oct. 13, 2011).     We assume the parties’ familiarity with the

10   underlying facts and procedural history of this case.

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

12   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d

13   Cir. 2006) (per curiam).     A petitioner may file only one

14   motion to reopen, and that motion must be filed within 90

15   days of the date the final administrative decision was

16   rendered, 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

17   § 1003.2(c)(2), unless the motion is based on material

18   evidence of changed country conditions arising in the

19   petitioner’s country of nationality, 8 U.S.C.

20   § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).

21       Here, there is no dispute that Macelara’s 2011 motion

22   was untimely and number-barred because he previously filed a

23   motion to reopen and his administrative order of removal

24   became final in 1996.     See 8 U.S.C. § 1229a(c)(7)(A),

                                     2
 1   (C)(i); see also 8 C.F.R. § 1003.2(c)(2).   In addition,    the

 2   evidence of changed conditions in Macedonia submitted with

 3   Macelara’s motion, an affidavit by Balkan history professor

 4   Dr. Bernd Fischer,1 was insufficient to establish materially

 5   changed conditions in Macedonia since his last hearing.     See

 6   Matter of S-Y-G-, 24 I&N Dec. 247, 253 (BIA 2007) (“In

 7   determining whether evidence accompanying a motion to reopen

 8   demonstrates a material change in country conditions that

 9   would justify reopening, [the BIA] compare[s] the evidence

10   of country conditions submitted with the motion to those

11   that existed at the time of the merits hearing below.”);

12   accord 8 C.F.R. § 1003.2(c)(3)(ii).   The BIA considered the

13   evidence in Dr. Fischer’s affidavit of ethnic conflicts for

14   Albanian Muslims, like Macelara, and reasonably concluded

15   that ethnic tensions have been ongoing throughout the

16   history of the region, and do not appear to have worsened in

17   recent years.

18       Macelara’s contention that the BIA violated his due

19   process rights by “fail[ing] to analyze the record as a

20   whole” is not supported by the record, because the BIA

21   considered the evidence he submitted of changed conditions

22   in Macedonia, and provided adequate findings regarding that


         1
           Contrary to Macelara’s assertion, the BIA credited
     Dr. Fischer as an expert in Balkan history.
                                  3
 1   evidence.     See   Burger v. Gonzales, 498 F.3d 131, 134 (2d

 2   Cir. 2007) (“[t]o establish a violation of due process, an

 3   alien must show that []he was denied a full and fair

 4   opportunity to present [his] claims or that the IJ or BIA

 5   otherwise deprived [him] of fundamental fairness” (internal

 6   quotation marks omitted)).     To the extent Macelara argues

 7   that the BIA is “systematically denying” motions to reopen

 8   based on an “excessively high standard,” he has provided no

 9   evidence to support this claim.      See INS v. Phinpathya, 464

10   U.S. 183, 188 n.6 (1984) (statements of counsel in a brief

11   are not evidence).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

20                                  FOR THE COURT:
21                                  Catherine O’Hagan Wolfe, Clerk
22




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