         12-3541
         Shqutaj v. Holder
                                                                                       BIA
                                                                               A076 108 855
                              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 February, two thousand fourteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                DENNIS JACOBS,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       KATRINE SHQUTAJ,
14                Petitioner,
15
16                           v.                                 12-3541
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Katrine Shqutaj, Sterling Heights,
24                                     Michigan (pro se).
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Paul Fiorino,
28                                     Senior Litigation Counsel; Matthew
29                                     B. George, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     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.

 5       Petitioner Katrine Shqutaj, a native and citizen of

 6   Albania, seeks review of an August 15, 2012, order of the

 7   BIA, denying her motion to reopen her removal proceedings.

 8   In re Katrine Shqutaj, No. A076 108 855 (B.I.A. Aug. 15,

 9   2012).   We assume the parties’ familiarity with the

10   underlying facts and procedural history in this case.

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

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

13   (2d Cir. 2006) (per curiam).    An alien seeking to reopen

14   proceedings is required to file a motion to reopen no later

15   than 90 days after the date on which the final

16   administrative decision was rendered, and may only file one

17   such motion.   See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8

18   C.F.R. § 1003.2(c)(2).    There is no dispute that Shqutaj’s

19   2012 motion to reopen was untimely and number-barred, as the

20   BIA issued a final order of removal in her case in 2002 and

21   she previously filed a motion to reopen in 2003.    Shqutaj

22   contends, however, that she established changed

23   circumstances excusing the time and number bars, including

                                     2
 1   her daughter’s grant of asylum in 2011 and worsening

 2   conditions in Albania for Catholics and members of her

 3   political party.   See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8

 4   C.F.R. § 1003.2(c)(3)(ii).

 5       The BIA did not abuse its discretion in finding that

 6   Shqutaj’s new evidence did not materially affect her

 7   eligibility for asylum because it did not rebut the adverse

 8   credibility determination the immigration judge (“IJ”) made

 9   in her asylum hearing in 2002.    See Kaur v. BIA, 413 F.3d

10   232, 234 (2d Cir. 2005) (per curiam); see also Qin Wen Zheng

11   v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007).   We have held

12   that a prior adverse credibility determination does not

13   necessarily preclude a finding of a well-founded fear of

14   persecution when the new claim rests on a factual predicate

15   “independent of the testimony that the IJ found not to be

16   credible.”   See Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.

17   2006).   Shqutaj’s 2012 motion to reopen, however, primarily

18   argued that she faced persecution on account of her

19   anti-communist political views, which were the basis for her

20   original asylum claim, and emphasized that her daughter had

21   been granted asylum on the same basis as Shqutaj’s prior

22   application, without addressing how her new evidence


                                   3
 1   rebutted the IJ’s credibility finding regarding this claim.

 2   While Shqutaj argues that the IJ’s credibility finding was

 3   in error, this issue is not before us, as the BIA affirmed

 4   the IJ’s decision in 2002 and Shqutaj did not petition this

 5   court for review of that decision.   See id. at 153 (“[A]

 6   motion to reopen does not provide a collateral route by

 7   which the alien may challenge the validity of the original

 8   credibility determination.”).

 9       To the extent that Shqutaj’s motion raised a new claim

10   based on her Catholic religion, the BIA did not err in

11   finding that Shqutaj did not submit sufficient evidence in

12   support of this claim.   While her motion asserted that she

13   faced persecution as a Catholic, Shqutaj did not submit an

14   affidavit or any documentary evidence establishing that she

15   is Catholic and that she subjectively fears persecution in

16   Albania on this basis.   See INS v. Phinpathya, 464 U.S. 183,

17   188 n.6 (1984) (counsel’s “unsupported assertions” in

18   briefing do not constitute evidence); Ramsameachire v.

19   Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004) (to establish a

20   well-founded fear of future persecution, an applicant must

21   present credible evidence that she “subjectively fears

22   persecution and establish that [her] fear is objectively


                                     4
 1   reasonable.” (citation omitted)).    We therefore decline to

 2   reach the agency’s finding that Shqutaj’s evidence did not

 3   show a material change in the treatment of Catholics in

 4   Albania, as she failed to establish, as a threshold matter,

 5   that she had a subjective fear of future persecution on

 6   account of her religion.   See Ramsameachire, 357 at 178; INS

 7   v. Bagamasbad, 429 U.S. 24, 25 (1976).

 8       For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition

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

12   this petition is DENIED as moot.    Any pending request for

13   oral argument in this petition is DENIED in accordance with

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

15   Circuit Local Rule 34.1(b).

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