     14-657
     Emin v. Lynch
                                                                                                  BIA
                                                                                     A095 369 508/9/10

                          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
TO 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 Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 1st day of May, two thousand fifteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            JOSÉ A. CABRANES,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   ADRIAN EMIN, MINA EMIN, MALVIN
14   EMIN,
15            Petitioners,
16
17                   v.                                                       14-657
18                                                                            NAC
19
20   LORETTA E. LYNCH, UNITED STATES
21   ATTORNEY GENERAL*,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                        Michael P. DiRaimondo, DiRaimondo &
26                                          Masi, LLP, Melville, New York.

     *Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is
     automatically substituted for former Attorney General Eric H. Holder, Jr.
 1   FOR RESPONDENT:                   Joyce R. Branda, Acting Assistant
 2                                     Attorney General; Anthony P.
 3                                     Nicastro, Senior Litigation
 4                                     Counsel; Dana M. Camilleri, Trial
 5                                     Attorney, Office of Immigration
 6                                     Litigation, U.S. Department of
 7                                     Justice, Washington, D.C.
 8
 9         UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13         Petitioners,      natives    and    citizens   of   Albania,    seek

14   review of the BIA’s February 11, 2014, decision denying

15   their motion to reopen.            In re Adrian, Mina, Malvin Emin

16   Nos. A095 369 508/9/10 (B.I.A. Feb. 11, 2014).                We assume

17   the   parties’   familiarity       with    the   underlying   facts    and

18   procedural history in this case.

19          We review the denial of a motion to reopen for abuse

20   of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

21   2006).    When    the    agency    considers     relevant   evidence    of

22   country conditions in evaluating a motion to reopen, we

23   review the agency’s factual findings under the substantial

24   evidence standard.       Jian Hui Shao v. Mukasey, 546 F.3d 138,

25   169 (2d Cir. 2008).
                                          2
 1          An applicant may file one motion to reopen within 90

 2   days of the date on which a final administrative decision

 3   was rendered in the proceeding sought to be reopened.                                      8

 4   U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).

 5   It    is    undisputed     that    Petitioners            motion     to    reopen       was

 6   untimely      and    number-barred           because      it   was    their        second

 7   motion and it was filed more than nine years after their

 8   orders         of        removal            became        final.          8        U.S.C.

 9   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).                             However, the

10   limitations do not apply where a motion is “based on changed

11   country conditions arising in the country of nationality or

12   the    country      to   which    removal         has   been     ordered,         if   such

13   evidence is material and was not available and would not

14   have       been     discovered         or     presented        at     the         previous

15   proceeding.”         8    U.S.C.       §     1229a(c)(7)(C)(ii);              8     C.F.R.

16   § 1003.2(c)(3)(ii).             Or the deadline may be tolled if the

17   applicant can demonstrate ineffective assistance of counsel,

18   and that he acted with due diligence in pursuing his claim.

19   Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008); see

20   also       Cekic    v.   INS,    435       F.3d    167,    170      (2d    Cir.        2006)

21   (requiring an alien to demonstrate due diligence independent
                                                  3
 1   from the requirement of demonstrating ineffective assistance

 2   of former counsel).

 3          It    was    not     error         for    the     agency       to    conclude     that

 4   Petitioners failed to show a material change in country

 5   conditions between their asylum hearing and the filing of

 6   their motion to reopen.                   The evidence showed that pervasive

 7   election-related violence and corruption in Albania existed

 8   in     the    years    preceding            their       2003       asylum      hearing    and

 9   continued at the time of their 2013 motion to reopen.                                     See

10   Norani       v.    Gonzales,         451    F.3d       292,     294      (2d    Cir.   2006)

11   (establishing         date      of    hearing          as   baseline        for    assessing

12   whether           evidence           establishes             changed           conditions).

13   Accordingly, it was not error to conclude that the recent

14   evidence—even             if         it         showed         marginally           worsened

15   conditions—was insufficient to show a material change in

16   country       conditions         excusing             the      applicable         procedural

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

18   § 1003.2(c)(3)(ii); see also In re S-Y-G-, 24 I. & N. Dec.

19   247,    257       (B.I.A.      2007)       (“Change         that    is     incremental     or

20   incidental does not meet the regulatory requirements” for

21   motions      to    reopen      based       on        changed    country        conditions).
                                                      4
 1   And, as the BIA observed, evidence of generalized violence

 2   and   unrest   in   Albania   was        insufficient     to    show    that

 3   Petitioners’ fears differed from the population as a whole.

 4   See Melgar de Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir.

 5   1999) (“General violence in [a country] does not constitute

 6   persecution, nor can it form a basis for petitioner’s well-

 7   founded fear of persecution.”).

 8         With respect to tolling based on ineffective assistance

 9   of counsel, Petitioners are required to demonstrate “due

10   diligence” in pursuing that claim “during the entire period

11   [they] . . . [sought] to toll.”               Rashid, 533 F.3d at 132;

12   see also Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000).

13         Even assuming that Petitioners have shown their former

14   counsel   to   be   ineffective,        the   BIA   did   not   abuse    its

15   discretion in finding that they did not pursue their claim

16   with due diligence.      See Cekic, 435 F.3d at 170 (requiring

17   an alien to demonstrate due diligence independent from the

18   requirement    of   demonstrating         ineffective     assistance      of

19   former counsel).      As the BIA observed, Petitioners learned

20   of counsel’s misconduct in April 2012 at the latest, when

21   their new counsel informed them of former counsel’s errors.
                                         5
 1   However, they waited until September 2013, approximately a

 2   year and a half later, to file their bar complaint against

 3   their former counsel, and did not file a motion to reopen

 4   with the BIA until October 2013.

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

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