     11-3980
     Radoncic v. Barr
                                                                                   BIA
                                                                           A073 033 467
                             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 TO 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 Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 9th day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DEBRA ANN LIVINGSTON,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   HAJRAN RADONCIC,
14            Petitioner,
15
16                      v.                                       11-3980
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Charles Christophe, New York, NY.
24
25   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
26                                      Attorney General; Briena L.
27                                      Strippoli, Senior Litigation
28                                      Counsel; Matthew B. George, Trial
29                                      Attorney, Office of Immigration
30                                      Litigation, United States
31                                      Department of Justice, Washington,
32                                      DC.
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           Petitioner   Hajran    Radoncic,     a   native   of    the   former

6    Yugoslavia and citizen of Montenegro, seeks review of a

7    September 13, 2011, decision of the BIA denying his motion to

8    reopen his removal proceedings.           In re Hajran Radoncic, No.

9    A 073 033 467 (B.I.A. Sept. 13, 2011).          We assume the parties’

10   familiarity with the underlying facts, procedural history in

11   this case, and issues on appeal.

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

13   abuse of discretion but review any finding regarding changed

14   country conditions for substantial evidence.                  See Jian Hui

15   Shao    v.   Mukasey,   546   F.3d   138,   168-69   (2d      Cir.   2008).

16   Radoncic does not dispute that his motion to reopen filed in

17   2011 was untimely because the BIA affirmed his removal order

18   in 2002. See 8 U.S.C. § 1229a(c)(7)(C)(i) (90-day deadline

19   for filing motion to reopen); 8 C.F.R. § 1003.2(c)(2) (same).

20   However, the time limitation for filing a motion to reopen

21   does not apply if reopening is sought to apply for asylum and

22   the motion is “based on changed country conditions arising in

23   the country of nationality or the country to which removal
                                  2
1    has been ordered, if such evidence is material and was not

2    available and would not have been discovered or presented at

3    the previous proceeding.”               8 U.S.C. § 1229a(c)(7)(C)(ii);

4    see also 8 C.F.R. § 1003.2(c)(3)(ii).

5          The   BIA    did       not   abuse    its    discretion     in     denying

6    reopening.        Radoncic’s motion to reopen did not identify

7    specific grounds for his fear of persecution but referenced

8    his original asylum application, in which he alleged past

9    persecution and a fear of future persecution on account of

10   his   Albanian         ethnicity,    Muslim       religion,     anti-communist

11   beliefs, and refusal to serve in the army.                    Although the new

12   articles    submitted        by    Radoncic    with     his    motion   vaguely

13   described     human           rights       violations,         discrimination,

14   politically       motivated        violence,      and   organized      crime   in

15   Montenegro, they did not pertain to the grounds he alleged as

16   the basis for his fear, nor did they offer a basis for

17   determining       if    circumstances       had    changed.       Accordingly,

18   Radoncic’s new evidence was not material.                       See Lecaj v.

19   Holder, 616 F.3d 111, 117 (2d Cir. 2010) (noting that evidence

20   reflecting    “ongoing         police       abuses”     in    Montenegro       was

21   irrelevant where evidence did not “link those abuses” to the

22   grounds for the asylum claim).

23         Moreover,        the   BIA    acted     within    its    discretion      in
                                             3
1    concluding that Radoncic failed to address, and the evidence

2    failed   to     rebut,   the   adverse    credibility    determination

3    underlying the denial of his original asylum application.

4    See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (holding

5    that the BIA properly denied the petitioner’s motion to reopen

6    where    its    order    “clearly    explained   that    the     evidence

7    submitted by petitioner in support of her motion was not

8    ‘material’ because it did not rebut the adverse credibility

9    finding that provided the basis for the IJ’s denial of

10   petitioner’s underlying asylum application”).

11       The BIA therefore did not abuse its discretion by denying

12   the motion as untimely because Radoncic failed to satisfy the

13   only available exception to the limitations period.                See 8

14   U.S.C.   §     1229a(c)(7)(C)(ii).       As   such,   contrary    to   his

15   argument, the BIA was not required to address his prima facie

16   eligibility for asylum relief.           See INS v. Abudu, 485 U.S.

17   94, 104-05 (1988) (observing that the agency may deny an

18   untimely motion to reopen for failure to demonstrate material

19   change in conditions or prima facie eligibility for the

20   substantive relief sought); INS v. Bagamasbad, 429 U.S. 24,

21   25 (1976) (“As a general rule courts and agencies are not

22   required to make findings on issues the decision of which is

23   unnecessary to the results they reach.”).
                                   4
1        For the foregoing reasons, the petition for review is

2    DENIED.    As we have completed our review, any stay of removal

3    that the Court previously granted in this petition is VACATED,

4    and any pending motion for a stay of removal in this petition

5    is DISMISSED as moot.    Any pending request for oral argument

6    in this petition is DENIED in accordance with Federal Rule of

7    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe,
11                                 Clerk of Court




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