                                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                        No. 12-2735
                                        ___________

                                  BESNIK KORBECI,
                                          Petitioner

                                            v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                    Respondent
                 ____________________________________

                         Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A078 511 545)
                     Immigration Judge: Honorable Annie S. Garcy
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 3, 2012

            Before: RENDELL, ALDISERT and NYGAARD, Circuit Judges

                           (Opinion filed: December 5, 2012)
                                     ___________

                              OPINION OF THE COURT
                                   ___________

PER CURIAM

      Besnik Korbeci petitions for review of an order of the Board of Immigration

Appeals (“BIA” or “Board”), which denied his motion to reopen removal proceedings.

We will deny the petition for review.
       Korbeci is a native and citizen of Albania. He entered the United States at the end

of 2000, and was charged with removability for being present in the United States

without having been admitted or paroled. Korbeci applied for asylum and related relief,

based on his allegations that he had been persecuted due to his political opinion. The

Immigration Judge (“IJ”) denied relief, finding that Korbeci‟s testimony was not credible.

The BIA affirmed without opinion. On Korbeci‟s petition for review, we noted the IJ‟s

finding that Korbeci had submitted a fraudulent newspaper article in support of his

claims, and that Korbeci had not challenged that finding. We thus stated that we could

not “conclude that a reasonable fact-finder would be compelled to conclude that the

article was genuine.” Besnik1 v. Ashcroft, 112 F. App‟x 180, 185 (3d Cir. 2004). We

also noted that “[a] finding that Besnik submitted false evidence to bolster his asylum

claim would logically cast doubt on his credibility as a whole, and we find that

substantial evidence supported the IJ's credibility determination.” Id.

       In September of 2011, Korbeci filed a motion to reopen, based on “new and

material evidence and changed country conditions in Albania.” A.R. 14. The motion

included a declaration by Korbeci‟s attorney; numerous news articles; an expert report

and curriculum vitae of Professor Julie Mertus; and birth, marriage, and naturalization

certificates for Korbeci‟s family members. The BIA denied the motion, stating that it

was untimely, and that it did not meet an exception to the timeliness requirements, as


1
 There is some confusion in the record regarding whether Petitioner‟s name is “Besnik
Korbeci” or “Korbeci Besnik.” Compare A.R. 368 with A.R. 1-2. Our previous opinion
                                           2
Korbeci had “not demonstrated changed conditions in Albania that materially affect his

eligibility for asylum, withholding of removal, and protection under the Convention

Against Torture.” JA1-6. Korbeci filed a timely petition for review.2

       We have jurisdiction to review the BIA‟s final order of removal under 8 U.S.C.

§ 1252(a), and we review a decision denying a motion to reopen for abuse of discretion.

Guo v. Ashcroft, 386 F.3d 556, 561-62 (3d Cir. 2004). We uphold the Board‟s factual

determinations underlying the denial of the motion to reopen if they are “„supported by

reasonable, substantial, and probative evidence on the record considered as a whole.‟”

Zheng v. Att‟y Gen., 549 F.3d 260, 266 (3d Cir. 2008) (quoting INS v. Elias-Zacarias,

502 U.S. 478, 481 (1992)). Put another way, such determinations must be upheld unless

the evidence presented would compel a reasonable factfinder to reach a contrary result. 8

U.S.C. § 1252(b)(4)(B); Guo, 386 F.3d at 561.

       A motion to reopen generally must be “filed within 90 days of the date of entry of

a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). Korbeci‟s

motion was filed beyond the 90 days. However, as the BIA noted, there is an exception

to the time requirements for motions to reopen if the movant shows “changed

circumstances arising in the country of nationality or in 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)(2)(3)(ii).


treated Besnik as the last name, but it appears the last name is actually Korbeci.
2
  Korbeci mistakenly filed the petition in the United States Court for the Second Circuit,
                                              3
Korbeci argues that the BIA abused its discretion in failing to reopen his proceedings, as

he established changed country conditions. We disagree.

       Although Korbeci‟s evidence may have established changed country conditions,

the BIA noted that Korbeci had “neither submitted nor identified any evidence addressing

the full breadth of the Immigration Judge‟s reasoning, namely that [he] failed to provide

credible testimony and evidence in support of his claim, which was not reversed by the

Board and was upheld by the United States Court of Appeals for the Third Circuit.” JA1-

6. Korbeci argues that it does not matter that he failed to address the adverse credibility

finding, because “the IJ specifically stated in her decision that Mr. Korbeci‟s membership

in the Democratic Party itself was not at issue during the hearing,” and that the fact of his

membership “alone, when considered in light of the new and material evidence submitted

with the motion, warrants reopening.” Pet. Br. at 14. It is true that the IJ stated, “there

never really has seemed to have been much of an issue about whether [Korbeci] might

have ever joined the Democratic Party,” JA1-12, but the evidence submitted with

Korbeci‟s motion to reopen does not support a conclusion that Democratic Party

membership, without more, would subject an Albanian to persecution. In other words, if

we: (1) consider that Korbeci is, or was, a Democratic Party member; (2) disbelieve

Korbeci‟s prior testimony (as we must in this procedural posture); and (3) consider the

articles and expert report that Korbeci submitted, we are not compelled to find that

Korbeci established a prima facie case for reopening. See Khan v. Att‟y Gen., 691 F.3d


but that Court transferred the case to us upon the Government‟s motion.
                                              4
488, 497 (3d Cir. 2012) (evidence submitted with motion to reopen was not “material”

where it did not rebut adverse credibility finding).

       Korbeci also argues that the BIA violated his right to due process, as it failed to

consider all the evidence submitted. Again, we disagree. The BIA clearly considered the

expert report and articles that Korbeci submitted, but it found that Korbeci had not

established a prima facie case for reopening. Cf. Zheng v. Att‟y Gen., 549 F.3d 260,

268-69 (3d Cir. 2008) (remanding where BIA “fail[ed] to discuss most of the evidentiary

record” in connection with a motion to reopen).3

       Korbeci also argues that the BIA erred in criticizing his motion to reopen for

failure to submit an application for asylum. He argues that he did not need to file a new

application, because the “underlying reasons for the Petitioner‟s claim remains the same:

Mr. Korbeci fears persecution due to his political activism and party affiliations.” Pet.

Br. at 14. We note, however, that a motion to reopen “must be accompanied by the

appropriate application for relief.” 8 C.F.R. § 1003.2(c)(1). Although we need not reach

the issue here, a number of our sister courts have found that the BIA would not abuse its

discretion in denying a motion to reopen for failure to submit an appropriate application.

See Jiang v. Holder, 639 F.3d 751, 757 (7th Cir. 2011); Waggoner v. Gonzales, 488 F.3d


3
  Korbeci also argues that his due process rights were violated because the IJ failed to act
as a neutral arbiter in his proceedings; however, we lack jurisdiction to review the
underlying proceedings. The decisions are independently reviewable, and a petition for
review must be timely filed from each decision. Nocon v. INS, 789 F.2d 1028, 1033 (3d
Cir. 1986). Additionally, we note that we reviewed the underlying proceedings when we
denied Korbeci‟s 2003 petition for review. (C.A. No. 03-3428).
                                              5
632, 639 (5th Cir. 2007); Palma-Mazariegos v. Keisler, 504 F.3d 144, 147 (1st Cir.

2007).

         For the foregoing reasons, we will deny the petition for review.




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