IMG-192                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 09-2163
                                     ___________

                      EMINE BEQIRI AND BARDHYL BEQIRI,
                                         Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent
                    ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                   (Agency Nos. A073-607-454 and A090-660-298)
                    Immigration Judge: Honorable Eugene Pugliese
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 5, 2010

          Before: FUENTES, ROTH and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: May 24, 2010)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Bardhyl Beqiri and Emine Beqiri (“the Beqiris”), husband and wife, petition for

review of the Board of Immigration Appeals’ (“BIA”) April 15, 2009 order denying their

motion to reopen their immigration proceedings. We will deny the petition.
                                            I.

       The Beqiris are natives of former Yugoslavia and citizens of Macedonia. They

entered the United States in January 1987 and were placed in deportation proceedings by

service of an order to show cause in April 1995. Seeking relief from deportation, the

Beqiris applied for asylum and withholding of deportation, claiming past persecution

because of their status as ethnic Albanians and practicing Muslims living in Macedonia.

The immigration judge (“IJ”) denied the Beqiris’ application, and the BIA affirmed the

IJ’s decision in February 2001. The Beqiris did not file an appeal.

       In October 2008, Bardhyl Beqiri was taken into custody. That same month,

through counsel, the Beqiris filed a motion to reopen and motion for a stay of deportation

with the BIA. The BIA denied both motions in November 2008. The Beqiris again did

not appeal. After obtaining new counsel, the Beqiris filed a second motion to reopen in

January 2009, arguing that there have been material changes in the treatment of ethnic

Albanians living in Macedonia since the BIA closed their immigration proceedings in

2001. The BIA concluded that the alleged changed conditions were not material and, in

an April 2009 decision, denied the Beqiris’ motion to reopen as both untimely and

number barred. This petition for review followed.

                                            II.

       Although we have jurisdiction to review the BIA’s order denying the Beqiris’

motion to reopen, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003), the


                                            2
scope of our review is limited. INS v. Doherty, 502 U.S. 314, 323 (1992). Under the

regulations, the BIA “has discretion to deny a motion to reopen even if the party moving

has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). As the Supreme Court

has stated, the regulations “plainly disfavor” such motions. INS v. Abudu, 485 U.S. 94,

110 (1988). Accordingly, we review the BIA’s denial of a motion to reopen for abuse of

discretion with “broad deference” to its decision. Ezeagwuna, 325 F.3d at 409. Thus, in

order to succeed on the petition for review, the Beqiris must show that the BIA’s

discretionary decision was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20

F.3d 580, 582 (3d Cir. 1994) (quotation omitted).

                                             III.

       A motion to reopen must be filed no later than ninety days after the date on which

the final administrative decision was rendered in the proceeding sought to be reopened.

See 8 C. F. R. § 1003.2(c)( 2). In addition, petitioners are typically barred from filing

more than one motion to reopen. Id. The Beqiris filed their second motion to reopen in

January 2009, far outside of the time limit. However, under 8 C.F.R. § 1003.2(c)(3)(ii),

petitioners may escape the numerical and time limitations set forth in § 1003.2(c)(2) by

establishing changed country conditions arising in the country to which removal has been

ordered, if such evidence is material and was not available and could not have been

discovered or presented at the previous proceeding. See 8 C.F.R. § 1003.2(c)(3)(ii).

       As mentioned, the Beqiris sought to reopen their proceedings by arguing that


                                              3
conditions for ethnic Albanians living in Macedonia have materially changed since the

BIA ordered their removal in February 2001. As primary support for their argument, the

Beqiris submitted an affidavit from Dr. Bernd Fischer, a professor of Balkan history at

Indiana University and consultant with the Executive Office for Immigration Review. Dr.

Fischer opined that the Beqiris suffered past persecution and that they would face a

reasonable possibility of persecution if returned to Macedonia because of: (1) Bardhyl

Beqiri’s status as an ethnic Albanian; (2) his Muslim religion; (3) past treatment by the

State Police during the Communist regime; and (4) the Beqiris’ long-term presence in the

United States. (A.R. 64.)1 Dr. Fischer further opined that conditions for ethnic Albanians

living in Macedonia have worsened since the Beqiris’ first deportation hearing in 1995.

(Id.)

        The BIA acknowledged that the changed country conditions exception set forth in

§ 1003.2(c)(3)(ii) might apply to the Beqiris’ case, and therefore reviewed Dr. Fischer’s

affidavit as well as a 2008 Amnesty International Report for Macedonia that the Beqiris

presented with their motion. After reviewing the evidence, the BIA concluded that the

evidence did not demonstrate a material change in the mistreatment of ethnic Albanians in

Macedonia and, thus, the Beqiris were not entitled to relief under § 1003.2(c)(3)(ii).

        After reviewing the record, we conclude that the BIA did not abuse its discretion




   1
    The immigration judge determined, however, that the Beqiris had not suffered past
persecution when he denied their application for asylum in 1995. (A.R. 39-40.)

                                             4
in denying the Beqiris’ motion to reopen. While Dr. Fischer’s affidavit provides a

historical account of the tensions between ethnic Albanians and Macedonians and

describes some recent incidents of violence directed against ethnic Albanians by

Macedonian military and police, the affidavit fails to establish that the problems faced by

ethnic Albanians are more prevalent now than they were at the time of the Beqiris’ prior

administrative proceedings. We also agree with the BIA that there is no indication in the

2008 Amnesty International Report for Macedonia that conditions have materially

worsened for ethnic Albanians since the Beqiris’ last hearing.

       Contrary to the Beqiris’ contention, we conclude that the BIA’s decision reflects

that it fairly considered the record evidence. While the BIA may not have explicitly

commented on a single-page article from Crisis Watch that the Beqiris also presented

with their motion to reopen, as we have previously explained, “[c]onsideration of all

evidence does not require comment on all evidence.” Thu v. Att’y Gen., 510 F.3d 405,

416 n.16 (3d Cir. 2007); cf. Zheng v. Att’y Gen., 549 F.3d 260, 271 (3d Cir. 2008)

(holding that BIA’s decision was inadequate because it “fail[ed] to offer even a cursory

review of the record”). Moreover, that article only provides a brief statement on the

2008 parliamentary elections in Macedonia, which Dr. Fischer also discussed in his

affidavit; it does not offer evidence of changed conditions.2



   2
    The Beqiris also argue in a supplemental letter, which we construe as a letter pursuant
to Fed. R. App. P. 28(j), that they are entitled to relief because an immigration judge
reopened a similar case in 2009. They assert that “[t]he motion in [that] case is virtually

                                             5
       Lastly, the Beqiris argue that the BIA should have permitted an IJ to consider their

application for protection under the Convention Against Torture (“CAT”) because their

prior deportation proceedings were concluded before such relief was available. The

argument is without merit. While it is true that relief under the CAT was not available at

the time of their prior administrative proceeding, aliens whose orders of deportation

became final prior to the implementation of the CAT had until June 21, 1999, to file a

motion to reopen. See 8 C.F.R. § 208.18(b)(2)(i). The Beqiris did not do so.

       Having found no abuse of discretion on the part of the BIA in denying the Beqiris’

motion to reopen, we will deny the petition for review.




identical to the motion filed in [their] case.” (See Supp. at 1.) However, the Beqiris have
not provided us with copy of the motion in that case and it is unclear what evidence the IJ
may have relied on in reaching its conclusion. Accordingly, we do not find the ruling in
that case instructive in our evaluation of the Beqiris’ petition for review.

                                             6
