         09-1732-ag
         Pllumbaj v. Holder
                                                                                       BIA
                                                                               A095 150 229
                                                                               A095 150 230
                                                                               A095 150 231
                                                                               A095 150 232
                               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 7 th day of May, two           thousand ten.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                GERARD E. LYNCH,
10                        Circuit Judges.
11       ______________________________________
12
13       FRAN ZEF PLLUMBAJ, ANITA PLLUMBAJ,
14       ALMARINA PLLUMBAJ, ALDO PLLUMBAJ,
15                Petitioners,
16                                                              09-1732-ag
17                            v.                                NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL, ET. AL.,
21                Respondents.
22       ______________________________________
23
24       FOR PETITIONERS:               Andrew P. Johnson; Lawrence Spivak,
25                                      New York, New York.
26
27       FOR RESPONDENTS:               Tony West, Assistant Attorney
28                                      General; Michelle Gorden Latour,
29                                      Assistant Director; Tracie N. Jones,
1                              Trial Attorney, Office of
2                              Immigration Litigation, Civil
3                              Division, United States Department
4                              of Justice, Washington, D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

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

9    is DENIED.

10       The Petitioners, Fran Zef Pllumbaj, Anita Pllumbaj,

11   Almarina Pllumbaj, and Aldo Pllumbaj, natives and citizens

12   of Albania, seek review of an April 17, 2009, order of the

13   BIA denying their motion to reopen their removal

14   proceedings.   In re Pllumbaj, No. A 095 150 229/230/231/232

15   (B.I.A. Apr. 17, 2009).     We assume the parties’ familiarity

16   with the underlying facts and procedural history of the

17   case.

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

19   abuse of discretion.     See Ali v. Gonzales, 448 F.3d 515, 517

20   (2d Cir. 2006).   When the BIA considers relevant evidence of

21   country conditions in evaluating a motion to reopen, we

22   review the BIA’s factual findings under the substantial

23   evidence standard.     See Jian Hui Shao v. Mukasey, 546 F.3d

24   138, 169 (2d Cir. 2008).

25       An alien may only file one motion to reopen and must do

                                     2
1    so within 90 days of the final administrative decision.

2    8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).      It is

3    indisputable that the Petitioners’ motion to reopen was

4    untimely and number-barred.    These limitations do not apply,

5    however, if the alien establishes materially changed

6    circumstances arising in the country of nationality.

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

8        In denying the Petitioners’ motion to reopen, the BIA

9    concluded that, even assuming they demonstrated changed

10   country conditions, reopening was unwarranted because they

11   failed to establish “that any of the harm [they] experienced

12   was on account of a protected ground, as opposed to criminal

13   activity.”   In other words, the BIA found that the

14   Petitioners had failed to establish their prima facie

15   eligibility for relief.    See INS v. Abudu, 485 U.S. 94, 104-

16   05 (1988).   We find the Petitioners’ assertion that a threat

17   issued against Fran’s brother by the police in an unrelated

18   matter five years after their mother’s death was

19   insufficient to compel the conclusion that she was killed

20   for political reasons.    See Siewe v. Gonzales, 480 F.3d 160,

21   167 (2d Cir. 2007) (“Where there are two permissible views

22   of the evidence, the factfinder’s choice between them cannot


                                    3
1    be clearly erroneous.”).   Evidence of Almarina’s rape,

2    though distressing, similarly does not suggest error in the

3    BIA’s decision.

4        The Petitioners further assert that they established

5    the requisite nexus because they demonstrated that they were

6    persecuted on account of their membership in a particular

7    social group comprised of “[family members] of a soldier who

8    opposed official abuse of civilians.”   However, the BIA was

9    under no obligation to consider this newly-minted legal

10   theory in adjudicating an untimely motion to reopen.      See

11   8 U.S.C. § 1229a(c)(7)(C)(ii); see also Matter of O-S-G-, 24

12   I. & N. Dec. 56, 58 (BIA 2006) (“A motion to reconsider

13   based on a legal argument that could have been raised

14   earlier in the proceedings will be denied.”).

15       Although the Petitioners alternatively challenge the

16   Immigration Judge’s initial determination that they failed

17   to establish a nexus between the incidents they described

18   and a protected ground, we are “precluded from passing on

19   the merits of the underlying [removal] proceedings” in

20   considering the BIA’s denial of the Petitioners’ motion to

21   reopen.   Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,

22   90 (2d Cir. 2001).


                                   4
1        Finally, although the Petitioners argue that the BIA

2    erred by failing to address whether they are eligible for

3    humanitarian asylum, such relief would only have been

4    available had the the BIA reopened their proceedings.    See

5    8 C.F.R. §§ 1003.2(c)(1); 1208.13(b)(1)(iii).

6        For the foregoing reasons, the petition for review is

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

8    removal that the Court previously granted in this petition

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

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

11   oral argument in this petition is DENIED in accordance with

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

13   Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16
17
18




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