                   Not for Publication in West's Federal Reporter

              United States Court of Appeals
                          For the First Circuit

No. 07-1434

                 KLOTILDA VASILIA, A/K/A MIRANDA PROSI,
                              TODI VASILIA,

                                 Petitioners,

                                        v.

          MICHAEL B. MUKASEY, United States Attorney General,*

                                  Respondent.


                   PETITION FOR REVIEW OF AN ORDER OF
                    THE BOARD OF IMMIGRATION APPEALS


                                     Before

                          Lynch, Circuit Judge,
                    Selya, Senior Circuit Judge, and
                     Siler,** Senior Circuit Judge.


     Sokol    Braha for petitioners.
     Peter    D. Keisler, Assistant Attorney General, Mark C. Walters,
Assistant     Director, and Joanne E. Johnson, Civil Division,
Department    of Justice, for respondent.


                              February 6, 2008



     *
      Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzales as the responded herein.

     **
          *Of the Sixth Circuit, sitting by designation.
      SILER, Senior Circuit Judge.                 Petitioners Klotilda Vasilia

(“Vasilia”) and her minor son, Todi Vasilia, challenge the denial

by the Board of Immigration Appeals (“BIA”) of a motion to reopen

their immigration proceedings.               Their untimely motion to reopen

asserted both ineffective assistance of counsel and changed country

conditions.       The BIA denied the motion.               Vasilia then filed this

petition for review.        We deny the petition.

                                            I.

      Klotilda and Todi Vasilia are citizens of Albania.                       They

attempted to enter the United States in 2001 without valid travel

documents.       The Department of Homeland Security charged them with

being removable.         When they appeared before the immigration judge

(“IJ”), the petitioners conceded removability and sought asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”).

      In her asylum application, Vasilia stated that she and her

family suffered past persecution based on their involvement in pro-

democracy activities.         Most of her family resettled in Greece in

1991,    where    they    continue    to     reside    as    permanent   residents.

Vasilia chose to remain in Albania with her husband and his family.

She claimed that in 1997, her husband was kidnapped and mistreated

for     approximately      three     days        because    of   his   pro-democracy

activities.      About two days after his release, a gunshot was fired

through a window of the family’s apartment, and her husband’s


                                           -2-
parents, who shared the apartment, received a threatening letter.

Following these events, the family went to Greece.                 From August

1997 until Vasilia’s attempt to enter the United States in 2001,

she and her family moved between Greece and Albania at various

times.

       The       IJ   denied   the   petitioners’   applications   for   asylum,

withholding of removal, and CAT relief.             The IJ found that Vasilia

failed to establish past persecution or a well-founded fear of

future persecution.            The IJ also emphasized the fact that neither

Vasilia nor her husband attempted to obtain resident status in

Greece, although they could have done so.

       Vasilia appealed the IJ’s decision to the BIA.              On April 9,

2003, the BIA denied her appeal.                 The BIA also held that the

petitioners were not entitled to a derivative claim of relief from

Vasilia’s husband because the BIA had separately dismissed his

claims for asylum, withholding of removal, and CAT relief.                  The

petitioners did not seek this court’s review of the BIA’s decision.

       Instead, on December 26, 2006, the petitioners filed a motion

with       the   BIA   to   reopen    their   immigration   proceedings.    The

petitioners moved the BIA to reopen their proceedings based on

ineffective assistance of counsel and changed country conditions.1

Vasilia asserts that her attorney did not adequately present her


       1
      The petitioners also raised Todi Vasilia’s health problems as
a humanitarian concern.    However, the BIA correctly found that
Todi’s condition is not relevant to the asylum claim.

                                          -3-
case to the IJ.      Specifically, Vasilia’s affidavit recounts an

incident from 2001 in which she was kidnapped and raped on account

of being a democratic activist.       Vasilia claims that her attorney

“unilaterally” decided not to present this information before the

IJ.   At the IJ hearing, Vasilia did not testify about any harm

coming to her or her husband after his kidnapping in 1997.

      In 2007, the BIA declined to exercise its sua sponte authority

to reopen the proceedings based on the ineffective assistance claim

and also denied the motion to reopen based on changed country

conditions, finding that the petitioners failed to establish a

reasonable likelihood of success on the merits.          This petition for

judicial review followed.

                                    II.

      The   petitioners’   motion   to     reopen   based   on    ineffective

assistance of counsel was untimely because it was filed more than

three years after the BIA rendered its decision.                 See 8 C.F.R.

§   1003.2(c)(2)   (allowing   90   days   to   file   motion    to   reopen).

Although equitable tolling of the 90-day deadline is possible, it

“is unavailable where a party fails to exercise due diligence.”

Jobe v. INS, 283 F.3d 96, 100 (1st Cir. 2001) (en banc).              The BIA

found that Vasilia failed to show due diligence where the motion to

reopen was filed three years after the BIA’s order of dismissal.

We do not have jurisdiction to review the BIA’s decision that

equitable tolling is unavailable where that decision was based “on


                                    -4-
a factual determination that [the petitioner] had not exercised due

diligence.”      Boakai v. Gonzales, 447 F.3d 1, 4 (1st Cir. 2006).

      Thus, the motion to reopen could be granted only if the BIA

exercised its sua sponte authority to reopen the proceedings.                    8

C.F.R. § 1003.2(a) (“The Board may at any time reopen or reconsider

on its own motion any case in which it has rendered a decision.”).

The BIA noted that it will take such action only in “exceptional

circumstances,” and it declined to do so here.                      Because the

decision   to    sua   sponte    reopen     a    case   is   committed    to    the

“unfettered discretion” of the BIA,             it is not subject to review by

this court.       Zhang v. Gonzales, 469 F.3d 51, 53 (1st Cir. 2006).

      The 90-day time limitation for motions to reopen does not

apply where the motion is based on changed country conditions, if

the   evidence    of   changed   conditions       “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 the

BIA’s denial of the motion based on changed country conditions for

an abuse of discretion.         Raza v. Gonzales, 484 F.3d 125, 127 (1st

Cir. 2007).      The evidence submitted in support of the motion to

reopen “must, at a bare minimum, establish a prima facie case

sufficient to ground a claim of eligibility for the underlying

substantive relief.”      Id. at 128.     Thus, in this case, Vasilia must

establish prima facie eligibility for asylum or withholding of

removal.


                                      -5-
      Vasilia argues that the BIA abused its discretion because it

denied   her        motion     without    considering            or     discussing      the

“substantial documentation submitted in support of the motion.”

However, much of the documentation submitted by Vasilia does not

meet the criteria set forth in the regulation because it was

available or could have been discovered at the original hearing.

This is true of the information in Vasilia’s affidavit regarding

the   attack   and     rape    that    allegedly         took    place    in   2001,    the

documents relating to her family’s political participation, and the

statements     regarding       treatment      of    her       husband    after    he    was

kidnapped. Additionally, some of the submitted documents appear to

be totally irrelevant, particularly those about the sentencing of

her husband’s uncle in 1948 by a military court.

      The proffered documentation regarding conditions in Albania

includes the 2005 State Department Report on Human Rights Practices

in Albania and several newspaper articles.                      The newspaper articles

are largely irrelevant to Vasilia’s case because they involve

hostility between members of the Albanian parliament, a reported

missile attack on a prominent pro-democracy family, and poor

conditions in Albanian prisons.                 None of these news stories is

sufficient     to    show     that    Vasilia      has    a     well-founded     fear    of

persecution     if     she    returns    to     Albania.           Further,      the    BIA

considered the State Department Report for 2005 and mentioned its

findings that “human rights were generally respected, and citizens


                                         -6-
exercised their rights to change government peacefully.”2 The only

other piece of relevant new evidence was a letter from Vasilia’s

father-in-law discussing recently-made threats to Vasilia’s husband

and son.     This letter, written on November 20, 2006, presents

obvious credibility concerns; however, the BIA failed to mention

the letter at all.

     Rather than addressing the petitioners’ documentation, the

BIA’s decision relies upon the 2005 State Department Report and

other cases wherein this court found that conditions in Albania had

improved since 2001.    In Tota v. Gonzales, we cited the 2004 State

Department    Report   on   Albania     and   found   “greatly   improved

conditions” for “individuals who suffered past persecution on

political grounds at the hands of the former Communist regime, and

who would be returning to Albania after having fled abroad.”         457

F.3d 161, 167 (1st Cir. 2006).    Similarly, in Alibeaj v. Gonzales,

we discussed the 2003 State Department Report and noted that “the

climate for political oppositionists in Albania has fundamentally

improved since 2001.”   469 F.3d 188, 193 (1st Cir. 2006).       Thus, in

both Tota and Alibeaj, this court relied on State Department

reports in affirming BIA determinations that petitioners failed to

demonstrate a well-founded fear of persecution.




     2
      The 2006 State Department Report also makes these findings,
and it generally supports the BIA’s determination that conditions
in Albania have improved since 2001.

                                  -7-
     Vasilia argues that the BIA is required to consider and

address all the evidence she submitted.    She refers to a Second

Circuit decision that said,

     When an applicant moves to reopen his case based on
     worsened country conditions, and introduces previously
     unavailable reports that materially support his original
     application, the BIA has a duty to consider these reports
     and issue a reasoned decision based thereon, whether or
     not these reports are clearly determinative.

Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) (emphasis in

original). The Poradisova case, however, seems most concerned with

BIA decisions that ignore State Department reports, rather than

decisions that fail to consider other evidence.     See id. at 79

(noting “the IJ should have taken into account, as apparently she

did not . . . the State Department reports”).    In this case, the

BIA clearly did consider the 2005 State Department Report and fully

explained its basis for denying the motion to reopen.   Therefore,

despite the failure to discuss the documentation submitted by

Vasilia, the BIA’s decision was not arbitrary or an abuse of

discretion.

     PETITION DENIED.




                               -8-
