         12-2817
         Kolami v. Holder
                                                                                        BIA
                                                                               A 095 356 335
                                                                               A 095 356 336
                                                                               A 095 356 337
                              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            Thurgood Marshall United
 3       States Courthouse, 40 Foley Square,            in the City of New York,
 4       on the 21st day of May, two thousand           thirteen.
 5
 6       PRESENT:
 7                          GUIDO CALABRESI,
 8                          DEBRA ANN LIVINGSTON,
 9                          RAYMOND J. LOHIER, JR.,
10                               Circuit Judges.
11
12
13       VALENT KOLAMI, GENTIANA KOLAMI, FRANC
14       KOLAMI,
15                     Petitioners,
16
17                           v.                                 12-2817
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                     Respondent.
22       _____________________________________
23
24       FOR PETITIONERS:                Michael P. DiRaimondo, Melville, New
25                                       York.
26
27       FOR RESPONDENT:                 Stuart F. Delery, Principal Deputy
28                                       Assistant Attorney General; John S.
 1                             Hogan, Senior Litigation Counsel;
 2                             Aimee J. Carmichael, Trial Attorney,
 3                             Office of Immigration Litigation,
 4                             United States Department of Justice,
 5                             Washington, D.C.

 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 is

 9   DENIED.

10       Valent,   Gentiana,    and   Franc   Kolami   (“Petitioners”),

11   natives and citizens of Albania, seek review of a July 2012

12   decision of the BIA denying their motion to reopen.         In re

13   Valent, Gentiana, and Franc Kolami, Nos. A095 356 335/336/337

14   (B.I.A. July 10, 2012).     We assume the parties’ familiarity

15   with the underlying facts and procedural history of this case.

16       We review the BIA’s denial of Petitioners’ motion to

17   reopen for abuse of discretion.      Ali v. Gonzales, 448 F.3d

18   515, 517 (2d Cir. 2006) (per curiam).       In general, an alien

19   may file only one motion to reopen and must do so within 90

20   days of the agency’s final administrative decision.       8 U.S.C.

21   § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).           Although

22   Petitioners’ motion was indisputably untimely because it was

23   filed more than seven years after the agency’s final order of

24   removal, there is no time limitation if the motion is “based


                                      2
 1   on changed country conditions arising in the country of

 2   nationality or the country to which removal has been ordered,

 3   if such evidence is material and was not available and would

 4   not   have   been   discovered   or    presented    at    the   previous

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

 6   § 1003.2(c)(3)(ii).       Further, if the movant can demonstrate

 7   ineffective assistance of counsel and has exercised “due

 8   diligence” in pursuing his claim, the time limitations on a

 9   motion to reopen may be equitably tolled.                See Rashid v.

10   Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008).

11         At the outset, we agree with the government that, with

12   respect to ineffective assistance of counsel, Petitioners have

13   not sufficiently challenged the BIA’s dispositive finding that

14   they failed to comply with the requirements set forth in

15   Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), and we

16   deem this challenge waived.        Yueqing Zhang v. Gonzales, 426

17   F.3d 540, 545 n.7 (2d Cir. 2005).

18         Contrary to Petitioners’ argument that the BIA violated

19   their due process rights by failing to consider all of the

20   evidence in their motion to reopen, there is substantial

21   evidence     in   the   BIA’s   opinion   that     it    gave   reasoned

22   consideration to the relevant evidence. See Wei Guang Wang v.


                                        3
 1   Bd. of Immigration Appeals, 437 F.3d 270, 275 (2d Cir. 2006)

 2   (rejecting argument that “where the BIA has given reasoned

 3   consideration to the petition, and made adequate findings, it

 4   must expressly parse or refute on the record each individual

 5   argument or piece of evidence offered by the petitioner”

 6   (internal quotation marks omitted)).

 7       We find no error in the BIA’s conclusion that Petitioners

 8   failed to demonstrate materially changed conditions in Albania

 9   that would excuse the untimely filing of their motion, as

10   substantial   evidence    indicates         a   continuation    of   poor

11   conditions that existed at the time of Petitioners’ merits

12   hearing, rather than a change in Albania’s human rights

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

14   § 1003.2(c)(3)(ii); Matter of S-Y-G-, 24 I. & N. Dec. 247, 253

15   (B.I.A. 2007) (noting that in evaluating evidence of changed

16   country   conditions,    the   BIA       “compare[s]   the   evidence   of

17   country conditions submitted with the motion to those that

18   existed at the time of the merits hearing below”).

19       For the foregoing reasons, the petition for review is

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

21   that the Court previously granted in this petition is VACATED,

22   and any pending motion for a stay of removal in this petition


                                          4
1   is DISMISSED as moot.   Any pending request for oral argument

2   in this petition is DENIED in accordance with Federal Rule of

3   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

4   34.1(b).

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk




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