         11-1756-ag
         Lucaj v. Holder
                                                                                       BIA
                                                                               A070 893 833


                            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 20th day of July, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       GJERGJ LUCAJ,
14                Petitioner,
15
16                         v.                                   11-1756
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23
24       FOR PETITIONER:         Michael P. DiRaimondo; Marialaina L.
25                               Masi; Stacy A. Huber, DiRaimondo & Masi,
26                               LLP, Melville, New York.
27
28       FOR RESPONDENT:         Stuart F. Delery, Acting Assistant
29                               Attorney General; Stephen J. Flynn,
30                               Assistant Director; Julie M. Iversen,
31                               Attorney, Office of Immigration
32                               Litigation, Civil Division, United States
33                               Department of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED in part and GRANTED in part.

 5       Petitioner Gjergj Lucaj, a native of the former

 6   Yugoslavia and citizen of Montenegro, seeks review of an

 7   April 20, 2011, order of the BIA denying his motion to

 8   reopen.   In re Gjergj Lucaj, No. A070 893 833 (B.I.A. Apr.

 9   20, 2011).   We assume the parties’ familiarity with the

10   underlying facts and procedural history in this case.      We

11   review the agency’s denial of a motion to reopen for abuse

12   of discretion.   Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

13   2005) (per curiam).

14       Because Lucaj’s motion to reopen was filed more than

15   ninety days after the BIA’s final order of removal, he

16   argued before the BIA that he was exempt from the time

17   limits on motions to reopen because he demonstrated changed

18   country conditions affecting his eligibility for asylum.

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

20   § 1003.2(c)(2), (3)(ii).   Accordingly, the BIA could have

21   denied his motion as untimely if it concluded that he did

22   not demonstrate a material change in country conditions,


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 1   Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005), or

 2   if he did not establish his prima facie eligibility for

 3   relief, INS v. Abudu, 485 U.S. 94, 104-05 (1988); see

 4   Poradisova, 420 F.3d at 78.

 5       Lucaj presented the BIA with three types of evidence to

 6   show a change in country conditions: (1) newspaper articles

 7   about the arrest and alleged torture of 14 Albanians accused

 8   of terrorism, including Lucaj’s cousin; (2) photographs

 9   demonstrating that Lucaj was involved in political protests

10   in the United States against these arrests; and (3)

11   affidavits from experts stating that ethnic tensions in

12   Montenegro have worsened and Lucaj may be prosecuted as a

13   draft-evader if he returns.

14       The BIA did not abuse its discretion in finding that

15   the first two sets of evidence did not establish changed

16   country conditions.   We have previously determined that

17   evidence about the treatment of Albanians accused of

18   terrorism does not demonstrate the persecution of Albanians

19   in general.   Lecaj v. Holder, 616 F.3d 111, 117–19 (2d Cir.

20   2010) (stating that “single incident of police abuse” shows

21   only “animus against suspected terrorists” and not

22   discrimination against an ethnic minority or religious


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 1   group).   Accordingly, the BIA reasonably concluded that,

 2   while Lucaj’s cousin was allegedly one of those arrested,

 3   this incident did not establish a material change in country

 4   conditions, because Lucaj did not present any evidence to

 5   show that he would be treated as a terrorism suspect.

 6       Similarly, the BIA reasonably concluded that Lucaj’s

 7   involvement in protests in the United States did not

 8   constitute a material change in conditions in Montenegro.

 9   See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.

10   2006) (concluding that changed personal circumstances in

11   United States do not constitute changed circumstances

12   arising in country of nationality).

13       However, the BIA abused its discretion in its treatment

14   of Lucaj’s evidence regarding his potential prosecution for

15   draft evasion.   Contrary to Lucaj’s argument, the BIA did

16   not deny him due process by failing to consider the reports

17   from experts describing conditions in Montenegro: the BIA

18   explicitly stated that it had considered those reports.

19   But, without directly addressing whether Lucaj established

20   changed country conditions relating to the prosecution of

21   draft evaders or a prima facie claim that he would be

22   prosecuted, the BIA stated that his evidence did not


                                   4
 1   establish a material change because, if Lucaj was prosecuted

 2   for evading the draft, he failed to show that such a

 3   prosecution would be a disproportionately severe punishment

 4   on account of a protected ground and constitute persecution.

 5   This was a misstatement of the law.

 6       Under our decision in Islami v. Gonzales, 412 F.3d 391

 7   (2d Cir. 2005), overruled in part on other grounds by Shi

 8   Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d

 9   Cir. 2007), the prosecution of an ethnic Albanian, like

10   Lucaj, who refused to serve in the Yugoslavian military

11   could constitute persecution and form the basis of an asylum

12   claim because the Yugoslavian army would likely have

13   required Lucaj to engage in military campaigns, widely

14   condemned by the international community, against his fellow

15   Albanians.   Id. at 396-97.    Accordingly, Lucaj was not

16   required to show that any prosecution of him for draft

17   evasion would be disproportionately severe: any prosecution

18   for draft evasion could count as persecution and form the

19   basis of an asylum claim.     Id.   The BIA therefore abused its

20   discretion by basing its conclusion that Lucaj’s evidence

21   about the treatment of draft evaders did not establish a

22   material changed in country conditions on an error of law.


                                     5
 1       We therefore grant the petition for review in part and

 2   vacate the agency’s conclusion that Lucaj did not establish

 3   a change in country conditions relating to the prosecution

 4   of draft evaders in Montenegro.   The BIA’s decision did not

 5   address Lucaj’s arguments that there was a change in

 6   conditions for draft evaders or whether he established a

 7   prima facie claim that he would actually be prosecuted for

 8   draft evasion.   We do not now express any opinion on those

 9   issues or the ultimate outcome of Lucaj’s motion to reopen.

10       For the foregoing reasons, the petition for review is

11   DENIED in part and GRANTED in part and the case is REMANDED

12   to the BIA for proceedings consistent with this decision.

13   As we have completed our review, the stay of removal that

14   the Court previously granted in this petition is VACATED.

15   Any pending request for oral argument in this petition is

16   DENIED in accordance with Federal Rule of Appellate

17   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk




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