12-4971
Kraja v. Holder
                                                                                BIA
                                                                           Weisel, IJ
                                                                        A095 367 448
                       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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 23rd day of September, two thousand fourteen.

PRESENT:
         JOHN M. WALKER, JR.,
         ROBERT D. SACK,
         REENA RAGGI,
              Circuit Judges.
_____________________________________

ILIR KRAJA,
         Petitioner,

                  v.                                    12-4971
                                                        NAC

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_____________________________________

FOR PETITIONER:                 Theodore Vialet, New York, New York.

FOR RESPONDENT:                 Stuart F. Delery, Assistant Attorney
                                General; Shelley R. Goad, Assistant
                                Director; Kristen Giuffreda Chapman,
                        Trial Attorney, Office of Immigration
                        Litigation, United States Department
                        of Justice, Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

    Ilir Kraja, a native and citizen of Albania, seeks review

of a November 29, 2012 decision of the BIA affirming the July

13, 2011 decision of Immigration Judge (“IJ”) Robert D.

Weisel, which denied both his motion to reopen and his motion

to remand.    In re Ilir Kraja, No. A095 367 448 (B.I.A. Nov.

29, 2012), aff’g No. A095 367 448 (Immig. Ct. N.Y. City July

13, 2011).     We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA.   See Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The applicable

standards of review are well established.   See Jian Hui Shao

v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008); see also Li

Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156-57 (2d

Cir. 2005).




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       A.     Motion to Reopen

       It is undisputed that Kraja’s 2011 motion to reopen was

untimely, as it was filed more than 90 days after the IJ’s

2003    order        of     removal      became         final.          See     8     U.S.C.

§   1229a(c)(7)(C)(i);             see   also      8    C.F.R.      §    1003.23(b)(1).

However, the time limitation for filing a motion to reopen

does not apply if the motion is “based on changed country

conditions arising in the country of nationality or the

country to which removal has been ordered, if such evidence is

material      and     was    not    available          and    would     not     have      been

discovered       or       presented      at       the    previous         proceedings.”

8   U.S.C.       §        1229a(c)(7)(C)(ii);                see    also        8     C.F.R.

§ 1003.23(b)(4)(i).

       In this case, the agency did not err in concluding that

Kraja       failed    to    establish      changed           conditions       in     Albania

because he did not submit any evidence (such as affidavits) to

support his assertion that members of the Socialist Party

recently       had    caused       his   parents        and     brother       unspecified

“problems.”          He also failed to explain how these asserted

conditions      differed         from    those      at       the   time    of       his   2003

proceedings, during which he also alleged that his family had

problems       with        the     Socialist           Party.           See     8     U.S.C.


                                              3
§ 1229a(c)(7)(C)(ii); see also In re S-Y-G-, 24 I.& N. Dec.

247, 253 (B.I.A. 2007) (“In determining whether evidence

accompanying a motion to reopen demonstrates a material change

in country conditions that would justify reopening, [the BIA]

compare[s] the evidence of country conditions submitted with

the motion to those that existed at the time of the merits

hearing below.”).

    The agency also did not err in declining to toll the time

period for filing Kraja’s motion based on his ineffective

assistance of counsel claim.         We have held that a petitioner

raising    such   a   claim   must       comply    with    the    procedural

requirements set forth in Matter of Lozada, 19 I. & N. Dec.

637 (B.I.A.), or explain his failure to do so.                   See Jian Yun

Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46-48 (2d Cir.

2005)     (holding    that    petitioner          “who    has     failed    to

substantially comply with the Lozada requirements in [his]

motion to reopen before the BIA forfeits [his] ineffective

assistance of counsel claim in this Court”).               Here, Kraja has

failed to satisfy the requisite procedural requirements and

has made no effort to explain why his lack of compliance

should be excused.     Accordingly, the agency did not abuse its

discretion in denying his motion to reopen as untimely.                    See


                                     4
8 U.S.C. § 1229a(c)(7)(C); see also Jian Hui Shao, 546 F.3d at

169.

       B.    Motion to Remand

       While   his    appeal    was   pending       before   the    BIA,    Kraja

submitted additional evidence in the form of a motion to

reconsider, which the BIA construed as a motion to remand.1

“A motion to remand that relies on newly available evidence is

held to the substantive requirements of a motion to reopen.”

Li Yong Cao, 421 F.3d at 156.           Therefore, the agency may deny

a motion to remand based on “the movant’s failure to make a

prima facie case of eligibility for asylum.”                  Id.

       Kraja’s motion included background documents and letters

from his father stating his circumstances since returning to

Albania. The letters did not, however, demonstrate that his

father      suffered    persecution         or     provide   any    basis       for

concluding     that    Kraja    would       face   threats   or    harm    if    he

returned to Albania.           The BIA did not err in concluding that

this evidence failed to establish his prima facie eligibility

for asylum and related relief, i.e., a realistic chance of

obtaining relief.        See Jian Hui Shao, 546 F.3d at 168-73.



1
  Kraja does not contend that the BIA erred in construing his
motion as a motion to remand.
                                        5
    Additionally, Kraja’s motion introduced evidence that he

is now eligible for adjustment of status as the beneficiary of

an approved visa petition.   Because this “self-induced change

in personal circumstances” is not an exception to the time

limitation for filing a motion to reopen, Wei Guang Wang v.

BIA, 437 F.3d 270, 274 (2d Cir. 2006), the BIA construed his

motion as a request to reopen proceedings sua sponte, and

denied the request.      We lack jurisdiction to review this

discretionary denial.    See Ali v. Gonzales, 448 F.3d 515, 518

(2d Cir. 2006) (holding that this Court lacks jurisdiction to

review the BIA's “entirely discretionary” decision to decline

to reopen proceedings sua sponte).

    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 of Court




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