         08-4956-ag
         Duka v. Holder
                                                                                       BIA
                                                                               A095 149 726
                            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 20 th day of January, two thousand ten.
 5
 6       PRESENT:
 7                        JON O. NEWMAN,
 8                        ROBERT D. SACK,
 9                        DEBRA ANN LIVINGSTON,
10                                 Circuit Judges.
11
12       _________________________________________
13
14       SHKELQIM DUKA,
15                Petitioner,
16
17                        v.                                    08-4956-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL, *
21                Respondent.
22       _________________________________________
23
24
25


                  *
                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:         Michael P. DiRaimondo, DiRaimondo &
 2                           Masi, LLP, Melville, New York.
 3
 4   FOR RESPONDENT:         Michael F. Hertz, Acting Assistant
 5                           Attorney General; Thomas B.
 6                           Fatouros, Senior Litigation Counsel;
 7                           Lynda A. Do, Attorney, Office of
 8                           Immigration Litigation, United
 9                           States Department of Justice,
10                           Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

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

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

15   is DENIED.

16       Petitioner Shkelqim Duka, a native of the former

17   Yugoslavia and a citizen of Macedonia, seeks review of a

18   September 30, 2008 order of the BIA denying his motion to

19   reopen.   In re Shkelqim Duka, No. A095 149 726 (B.I.A. Sept.

20   30, 2008).   We assume the parties’ familiarity with the

21   underlying facts and procedural history in this case.

22       We review the BIA’s denial of Duka’s motion to reopen

23   for abuse of discretion.   See Kaur v. BIA, 413 F.3d 232, 233

24   (2d Cir. 2005) (per curiam).   There is no dispute that

25   Duka’s second motion to reopen was untimely and number-

26   barred.   See 8 C.F.R. § 1003.2(c)(2).   However, there is no

27   time limitation for filing a motion to reopen if it is


                                    2
1    “based on changed circumstances arising in the country of

2    nationality or in the country to which deportation has been

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

4    and could not have been discovered or presented at the

5    previous hearing.”     8 C.F.R. § 1003.2(c)(3)(ii).   The BIA

6    reasonably found that Duka’s motion to reopen did not

7    qualify for such an exception.

8        In determining that Duka failed to demonstrate that

9    country conditions in Macedonia had materially worsened, the

10   BIA extensively considered the 2007 U.S. Department of

11   State’s report on Human Rights Practices in Macedonia (“2007

12   Report”) and reasonably found that the report demonstrated

13   that although discrimination against ethnic minorities

14   continued, overall ethnic tensions had decreased and the

15   Macedonian government had taken steps to improve rights for

16   minorities.   Moreover, contrary to Duka’s assertion that the

17   BIA violated his due process rights by failing adequately to

18   consider a report from Dr. Bernd J. Fischer, the BIA

19   acknowledged Dr. Fischer’s report and reasonably found that

20   it did not portray a situation in Macedonia different from

21   the 2007 Report.     See Jian Hui Shao v. Mukasey, 546 F.3d

22   138, 169 (2d Cir. 2008) (noting that the Court does not

                                     3
1    “attempt to resolve conflicts in record evidence, a task

2    largely within the discretion of the agency”).    Furthermore,

3    the BIA did not err in declining to credit Dr. Fischer’s

4    ultimate conclusion that there was a reasonable possibility

5    that Duka would face “persecution in the form of a threat to

6    his safety” because that conclusion was based in part on

7    Duka’s assertion that he had been detained and beaten in the

8    past – a claim that was deemed not credible in his

9    underlying proceedings.    See Kaur, 413 F.3d at 234

10   (concluding that the BIA did not err in finding petitioner’s

11   evidence not material because it did not rebut the agency’s

12   underlying adverse credibility determination); see also Qin

13   Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007).

14       Accordingly, the BIA did not abuse its discretion in

15   denying Duka’s motion to reopen.    See 8 C.F.R. § 1003.2(c);

16   see also Kaur, 413 F.3d at 234.    Finally, because Duka had

17   filed an untimely and number-barred motion to reopen his

18   removal proceedings, the BIA was under no obligation to

19   consider separately his eligibility for CAT relief.    See

20   8 C.F.R. § 1003.2(c)(2).




                                    4
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34(b).

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




                                   5
