         09-1921-ag
         Perasevic v. Holder
                                                                                        BIA
                                                                               A 079 328 563
                                                                               A 079 328 564
                                 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 Daniel Patrick                 Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                 City of
 4       New York, on the 19 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                             GUIDO CALABRESI,
 8                             ROBERT A. KATZMANN,
 9                             DEBRA ANN LIVINGSTON,
10                                    Circuit Judges.
11
12       ______________________________________
13
14       SMAIL PERASEVIC AND NEBIJA PERASEVIC,
15                Petitioners,
16                                                              09-1921-ag
17                              v.                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONERS:                    Charles Christophe, New York, New
25                                           York.
26
27       FOR RESPONDENT:                     Tony West, Assistant Attorney
28                                           General, Civil Division; Luis E.
29                                           Perez, Senior Litigation Counsel;
30                                           Joseph D. Hardy, Trial Attorney,
31                                           Office of Immigration Litigation,
32                                           Civil Division, United States
33                                           Department of Justice, Washington,
34                                           D.C.
35
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        Petitioners, natives and citizens of the former

6    Yugoslavia, seek review of an April 13, 2009, order of the

7    BIA denying their third motion to reopen their removal

8    proceedings.    In re Smail Perasevic and Nebija Perasevic,

9    Nos. A 079 328 563, A 079 328 564 (B.I.A. Apr. 13, 2009).

10   We assume the parties’ familiarity with the underlying facts

11   and procedural history of the case.

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

13   abuse of discretion.    Ali v. Gonzales, 448 F.3d 515, 517 (2d

14   Cir. 2006).    An alien may only file one motion to reopen and

15   must do so within 90 days of the agency’s final

16   administrative decision.    8 C.F.R. § 1003.2(c)(2).   However,

17   the time and number limitations do not apply to a motion to

18   reopen that is “based on changed circumstances arising in

19   the country of nationality or in the country to which

20   deportation has been ordered, if such evidence is material

21   and was not available and could not have been discovered or

22   presented at the previous hearing.”    8 C.F.R.

23   § 1003.2(c)(3)(ii).


                                    2
1        Here, the BIA did not abuse its discretion in denying

2    petitioners’ untimely and number-barred motion to reopen.

3    Much of the evidence petitioners included with their motion

4    was already submitted, or was available for submission, at

5    the time of their hearing before the IJ, and was therefore

6    not previously unavailable.     See id.    Furthermore, contrary

7    to petitioners’ conclusory statement that the evidence

8    “depicts worsening country conditions for ethnic Albanians

9    in Montenegro,” the BIA properly found that the evidence

10   merely documented “the continued existence of some police

11   and human rights abuses in Montenegro.”       Therefore, the BIA

12   did not abuse its discretion in denying petitioners’ motion

13   to reopen based on their failure to establish changed

14   circumstances in Montenegro.     See 8 C.F.R. § 1003.2(c)(2),

15   (c)(3)(ii).

16       Finally, although the BIA erred in finding that Smail

17   Perasevic’s affidavit was “unsworn,” we decline to remand on

18   that basis.   See Wei Guang Wang v. BIA, 437 F.3d 270, 275-76

19   (2d Cir. 2006) (declining to remand because the Court could

20   “predict with confidence” that the BIA would reach the same

21   conclusion absent the error).       Because that affidavit

22   concerned the same claim that the IJ had previously found

23   not credible, the BIA was under no obligation to afford it

                                     3
1    any probative weight.   See Qin Wen Zheng v. Gonzales, 500

2    F.3d 143, 147-48 (2d Cir. 2007) (holding that the agency may

3    properly conclude that a prior adverse credibility

4    determination undermines the authenticity of documentary

5    evidence filed in support of a motion to reopen).

6        For the foregoing reasons, the petition for review is

7    DENIED.   Having completed our review, the pending motion for

8    a stay of removal in this petition is DISMISSED as moot.

9    The request for oral argument in this petition is DENIED in

10   accordance with Federal Rule of Appellate Procedure

11   34(a)(2), and Second Circuit Local Rule 34.1(b).

12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk
14
15




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