    09-4095-ag
    Canaj v. Holder
                                                                                     BIA
                                                                            A097 478 771
                           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 ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 12th day of August, two thousand ten.

    PRESENT:
              DEBRA ANN LIVINGSTON,
              GERARD E. LYNCH,
              DENNY CHIN,
                   Circuit Judges.
    _____________________________________

    SHTJEFEN CANAJ,
             Petitioner,

                      v.                              09-4095-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
              Respondent.
    _____________________________________

    FOR PETITIONER:                 Charles Christophe, New York, New York

    FOR RESPONDENT:                 Tony West, Assistant Attorney General; James
                                    A. Hunolt, Senior Litigation Counsel; Jesse
                                    Lloyd Busen, Trial Attorney, Office of
                                    Immigration Litigation, Civil Division, United
                                    States Department of Justice, Washington,
                                    D.C.
      UPON DUE CONSIDERATION of this petition for review of a decision of

the Board of Immigration Appeals (ABIA@), it is hereby ORDERED, ADJUDGED,

AND DECREED, that the petition for review is DENIED.

      Shtjefen Canaj, a native of Kosovo and citizen of the former Yugoslavia,

seeks review of a September 9, 2009, order of the BIA denying his motion to

reopen. In re Shtjefen Canaj, No. A097 478 771 (B.I.A. Sept. 9, 2009). We

assume the parties= familiarity with the underlying facts and procedural history of

this case.

      We review the BIA=s denial of a motion to reopen for abuse of discretion,

mindful of the Supreme Court=s admonition that such motions are Adisfavored.@

Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S.

314, 322-23 (1992)). A party may file only one motion to reopen removal

proceedings, and must do so no later than 90 days after the date on which the

final administrative decision was rendered in the proceeding sought to be

reopened. 8 C.F.R. ' 1003.2(c)(1),(2). It is beyond dispute that Canaj=s motion to

reopen was untimely.

I.    Ineffective Assistance of Counsel

      Where ineffective assistance of counsel prevents an alien from presenting

his claim, the filing deadline for motions to reopen may be equitably tolled. Cekic

v. INS, 435 F.3d 167, 171 (2d Cir. 2006). In order to warrant equitable tolling, an

alien is required to demonstrate Adue diligence@ in pursuing his claims during

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Aboth the period of time before the ineffective assistance of counsel was or

should have been discovered and the period from that point until the motion to

reopen is filed.@ See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). We

have noted that Athere is no period of time which we can say is per se

unreasonable, and, therefore, disqualifies a petitioner from equitable tolling -- or,

for that matter, any period of time that is per se reasonable.@ Jian Hua Wang v.

BIA, 508 F.3d 710, 715 (2d Cir. 2007).

             We find no abuse of discretion in the BIA=s conclusion that Canaj

failed to exercise due diligence where he filed his motion to reopen over one year

after he discovered that he received ineffective assistance of counsel. See id.

Canaj does not deny that he became aware of the BIA=s decision in September or

October 2007, but asserts that he did not learn that his prior counsel had failed to

file a brief until he retained new counsel and that it took him time to file

complaints against his former counsel. However, Canaj did not explain when he

retained new counsel, when he filed the complaints, nor why obtaining new

counsel and filing complaints against his former counsel took over one year.

Accordingly, Canaj fails to demonstrate that the BIA abused its discretion in

denying his untimely motion. See Id.

II.   Changed Country Conditions

      The time and number limitations also do not apply to a motion to reopen

that is Abased on changed circumstances arising in the country of nationality or in

                                           3
the country to which deportation has been ordered, if such evidence is material

and was not available and could not have been discovered or presented at the

previous hearing.@ 8 C.F.R. ' 1003.2(c)(3)(ii). We review for substantial

evidence the BIA=s evaluation of country conditions evidence submitted with a

motion to reopen. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

      Canaj argues that the BIA abused its discretion in denying his motion to

reopen in light of the evidence presented. While the BIA has an obligation to

consider the Arecord as a whole@ and may abuse its discretion by denying a

motion to reopen without addressing Aall the factors relevant to [a] petitioner=s

claim,@ Ke Zhen Zhao v. U.S. Dep=t of Justice, 265 F.3d 83, 97 (2d Cir. 2001), it is

not required to Aexpressly parse or refute . . . each individual . . . piece of

evidence offered by the petitioner.@ Wei Guang Wang v. BIA, 437 F.3d 270, 275

(2d Cir. 2006) (internal quotation marks omitted). Here, the BIA considered

Canaj=s evidence, including an affidavit from Prenk Camaj, but determined that

any changes were insufficient to warrant reopening and that conditions had, in

fact, improved. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007)

(AWhere there are two permissible views of the evidence, the factfinder=s choice

between them cannot be clearly erroneous.@ (internal quotation marks omitted)).

        On this record, we cannot conclude that the BIA erred in evaluating

Canaj=s evidence. See Jian Hui Shao, 546 F.3d at 169; Ke Zhen Zhao, 265 F.3d

at 93. Thus, we will not disturb its denial of Canaj=s untimely motion to reopen.

                                           4
Moreover, the BIA did not err in denying Canaj=s CAT claim because it was based

on the same factual predicate as his claim for withholding of removal. See Paul

v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006).

      For the foregoing reasons, the petition for review is DENIED. As we have

completed our review, any stay of removal that the Court previously granted in

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

petition is DISMISSED as moot. Any pending request for oral argument in this

petition is DENIED in accordance with Federal Rule of Appellate Procedure

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


                                     FOR THE COURT:
                                     Catherine O=Hagan Wolfe, Clerk




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