         08-4473-ag
         Agostin v. Holder
                                                                                       BIA
                                                                                A79 669 224
                                  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 1 st day of February, two thousand ten.
 5
 6       PRESENT:
 7                 ROSEMARY S. POOLER,
 8                 ROBERT D. SACK,
 9                 DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11       _______________________________________
12
13       JUBANI AGOSTIN, a.k.a. ZEF GJON VOLAJ,
14                Petitioner,
15
16                           v.                                 08-4473-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., ATTORNEY GENERAL, 1
19                Respondent.
20
21       _______________________________________
22
23
24
25


                       1
                   Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
             Attorney General Eric H. Holder, Jr. is automatically substituted
             for former Attorney General Michael B. Mukasey as respondent in this
             case.
 1   FOR PETITIONER:         Charles Christophe, New York, New
 2                           York.
 3
 4   FOR RESPONDENT:         Gregory G. Katsas, Assistant
 5                           Attorney General, James A. Hunolt,
 6                           Senior Litigation Counsel,
 7                           Christopher P. McGreal, Trial
 8                           Attorney, Office of Immigration
 9                           Litigation, Civil Division, United
10                           States Department of Justice,
11                           Washington, D.C.
12
13       UPON DUE CONSIDERATION of this petition for review of a

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

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

16   review is DENIED.

17       Petitioner Jubani Agostin, a native and citizen of

18   Albania, seeks review of an August 12, 2008 order of the BIA

19   denying his motions to reopen and reconsider.   In re Jubani

20   Agostin, No. A79 669 224 (B.I.A. Aug. 12, 2008).      We assume

21   the parties’ familiarity with the underlying facts and

22   procedural history of the case.

23       As a preliminary matter, we lack jurisdiction to

24   consider Agostin’s argument that the BIA should have

25   reopened his proceedings sua sponte.   See 8 C.F.R.

26   § 1003.2(a); Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d

27   Cir. 2006).   Because Agostin fails to challenge the BIA’s

28   denial of his untimely motion to reconsider, we deem any


                                   2
1    such argument waived.     See Yueqing Zhang v. Gonzales, 426

2    F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

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

4    abuse of discretion.     See Ali, 448 F.3d at 517.   Here, the

5    BIA properly denied Agostin’s motion to reopen as untimely

6    where it was filed over a year after his 2006 final order of

7    removal.   See 8 C.F.R. § 1003.2(c)(2) (providing that an

8    applicant must file a motion to reopen within ninety days of

9    the final administrative decision).     Moreover, the BIA did

10   not abuse its discretion in finding that Agostin failed to

11   present material evidence of changed country conditions

12   sufficient to satisfy the exception to the time limitation.

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

14   § 1003.2(c)(3)(ii); INS v. Abudu, 485 U.S. 94, 104-105

15   (1988).

16       Contrary to Agostin’s argument that the BIA failed to

17   consider the evidence he submitted, the BIA explicitly found

18   two inconsistencies between that new evidence and the

19   evidence already in the record.     Agostin failed to explain

20   these inconsistencies.     Particularly where the IJ had

21   already found that Agostin was not credible, a finding we

22   previously affirmed, we find no basis to disturb the


                                     3
1    agency’s denial of Agostin’s motion.   See Kaur v. Board of

2    Immigration Appeals, 413 F.3d 232, 233-34 (2d Cir. 2005);

3    Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir.

4    2007).

5        For the foregoing reasons, the petition for review is

6    DENIED.   The pending motion for a stay of removal in this

7    petition is DISMISSED as moot.

8

 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12
13




                                   4
