                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 04a0140n.06
                           Filed: December 2, 2004

                                           No. 03-4052

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


Marjan Mirditaj,                                  )
                                                  )
       Petitioner,                                )
                                                  )
v.                                                )   PETITION FOR REVIEW OF AN
                                                  )   ORDER OF THE BOARD OF
                                                  )   IMMIGRATION APPEALS
John Ashcroft, Attorney General,                  )
                                                  )
       Respondent.                                )




       Before: RYAN, COLE and ROGERS, Circuit Judges.
       Rogers, Circuit Judge. Marjan Mirditaj petitions for review of the Board of Immigration

Appeals (BIA) decision to deny his motion to reopen1 deportation proceedings. Mr. Mirditaj argues

the BIA abused its discretion in denying the motion for reconsideration because it failed to consider

intervening case law and relevant regulations, and that the BIA’s failure to consider a particular

regulation amounted to a violation of due process. The BIA did not abuse its discretion in denying

the motion for reconsideration because the intervening case law was not binding on the BIA and the

regulation cited by Mr. Mirditaj’s was passed prior to his initial appeal to the BIA. Mr. Mirditaj’s

due process argument is also without merit.

       1
        Although styled a “Motion to Reopen” by Mr. Mirditaj and the BIA, this is technically
incorrect because Mr. Mirditaj raised legal, rather than factual, grounds in the motion. See 8
C.F.R. §§ 1003.2(b)(1) & (c)(1) (2004). Mr. Mirditaj’s motion should have been styled a motion
for reconsideration, and this opinion accordingly refers to it as such.
No. 03-4052
Mirditaj v. Ashcroft

       Mr. Mirditaj, a citizen of Yugoslavia, is a 24 year old ethnic Albanian from Eagota, Kosovo.

As part of the Serb campaign of the 1990's directed against ethnic Albanians in Kosovo, Mr.

Mirditaj was arrested for studying the Albanian language, illegal under the Serb regime, and was

beaten “badly” after his arrest. After Mr. Mirditaj received a letter drafting him into the Serbian

army in 1998, he fled to the United States.


       Following his arrival in the United States, Mr. Mirditaj was served with a notice to appear

charging he was removable under the Immigration and Nationality Act. 8 U.S.C. § 1182(a)(6)(A)(i)

(2000). Mr. Mirditaj appeared and conceded the charge of removal, but filed an application for

asylum and withholding of deportation. In May of 2000, a hearing on Mr. Mirditaj’s asylum petition

was held before an Immigration Judge who, at the conclusion of the hearing, denied Mr. Mirditaj’s

asylum application. The judge found Mr. Mirditaj to be credible, but determined that he had not

established either past persecution or a well founded fear of future persecution. Mr. Mirditaj then

appealed to the BIA.


       On December 30, 2002, the BIA affirmed the denial of the application for asylum without

opinion. Following the BIA decision, Mr. Mirditaj filed a motion for reconsideration based on a

subsequent Ninth Circuit decision, Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003), and an

intervening regulation, 8 C.F.R. § 208.13(b)(1)(iii)(B) (2004). The BIA denied the motion to

reconsider in July of 2003, refusing to apply the Ninth Circuit precedent. The BIA did not directly

address the regulation in its decision, but stated that Mr. Mirditaj failed to cite any new statutes or

regulations in his motion for reconsideration. Mr. Mirditaj now appeals the denial of his motion to

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No. 03-4052
Mirditaj v. Ashcroft

reconsider.


       The BIA’s decision to deny a motion for reconsideration is reviewed for abuse of discretion.

Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir. 2003). The BIA abuses its discretion in denying

a motion for reconsideration “when it acts arbitrarily, irrationally or contrary to law.” Id. (citing

Babai v. INS, 985 F.2d 252, 255 (6th Cir.1993)). We deny Mr. Mirditaj’s petition for review

because the BIA did not abuse its discretion in denying the motion for reconsideration based on an

intervening Ninth Circuit decision or regulation, and Mr. Mirditaj has failed to establish the

prejudice necessary to sustain a due process claim that would support a petition for review.




       The BIA did not abuse its discretion in denying the motion for reconsideration based on the

Ninth Circuit decision in Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003). While “[t]he BIA is

required to follow court of appeals precedent within the geographical confines of the relevant

circuit,” the precedent of the Ninth Circuit is not binding on the BIA in a case originating within the

Sixth Circuit. See Abdulai v. Ashcroft, 239 F.3d 542, 553 (3d Cir. 2001); Matter of Anselmo, 20

I&N Dec. 25, 31 (BIA 1989) (“Where [the BIA] disagree[s] with a court's position on a given issue,

[the BIA] decline[s] to follow it outside the court's circuit.”). The Ninth Circuit determined in

Hoxha that the well documented and extensive abuse of ethnic Albanian Kosovars lowered the

threshold showing required to apply successfully for asylum. See 319 F.3d at 1182-83. While the

circumstances of Mr. Hoxha and Mr. Mirditaj are factually similar, the BIA was not bound by the

decision in Hoxha, and the BIA did not abuse its discretion in declining to follow the decision of the

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No. 03-4052
Mirditaj v. Ashcroft

Ninth Circuit in a case originating within the Sixth Circuit.


       Further, the BIA did not abuse its discretion in denying the motion for reconsideration based

on an “intervening” regulation, 8 C.F.R. § 208.13(b)(1)(iii)(B) (2004). The regulation cited by Mr.

Mirditaj became effective six months prior to his initial appeal to the BIA and therefore the BIA

did not abuse its discretion in concluding that Mr. Mirditaj had not cited any new statutes or

regulations that would support a motion to reconsider. See 65 Fed. Reg. 76121 (Dec. 6, 2000)

(effective date of changes to portions of 8 C.F.R. 208.13 is January 5, 2001). In any event, 8 C.F.R.

§ 208.13(b)(1)(iii)(B) (2004) is inapplicable to Mr. Mirditaj because the regulation requires a

showing of past persecution. The immigration judge found that Mr. Mirditaj failed to establish past

persecution and the BIA affirmed that decision. Therefore, Mr. Mirditaj falls outside the protection

of 8 C.F.R. § 208.13(b)(1)(iii)(B).


       Mr. Mirditaj’s due process claim is also based on 8 C.F.R. § 208.13(b)(1)(iii)(B) (2004) and

is similarly without merit.


       For the foregoing reasons, we DENY Mr. Mirditaj’s petition for review.




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