         11-650-ag
         Kodza v. Holder
                                                                                       BIA
                                                                               A070 530 906
                                                                               A070 530 907
                                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 26th day of March, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       ISLAM KODZA, MERITA KODZA,
14                Petitioners,
15
16                         v.                                   11-650-ag
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONERS:                Justin Conlon, North Haven,
25                                       Connecticut
26
27       FOR RESPONDENT:                 Tony West, Assistant Attorney
28                                       General; Jennifer P. Levings, Senior
29                                       Litigation Counsel; Tim Ramnitz,
30                                       Attorney, Office of Immigration
 1                             Litigation, Civil Division, United
 2                             States Department of Justice,
 3                             Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Petitioners Islam Kodza and Merita Kodza, natives of

10   the former Yugoslavia and citizens of Macedonia, seek review

11   of a February 3, 2011, order of the BIA denying their motion

12   to reopen.    In re Islam Kodza, Merita Kodza, Nos. A070 530

13   906/907 (B.I.A Feb. 3, 2011).       We assume the parties’

14   familiarity with the underlying facts and procedural history

15   in this case.

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

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

18   Cir. 2006).     When the BIA considers relevant evidence of

19   country conditions in evaluating a motion to reopen, we

20   review the BIA’s factual findings under the substantial

21   evidence standard.     See Jian Hui Shao v. Mukasey, 546 F.3d

22   138, 169 (2d Cir. 2008).

23       Here, because the Kodzas filed their motion to reopen

24   more than 90 days after the BIA issued a final order of


                                     2
 1   removal in their case, they were required to show materially

 2   changed circumstances in Macedonia to excuse the untimely

 3   filing.   See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii).       The BIA

 4   reasonably found that the Kodzas did not establish such a

 5   change.

 6       Although the Kodzas submitted with their motion to

 7   reopen evidence showing, inter alia, violent confrontations

 8   between Macedonian police and armed ethnic Albanian

 9   extremists, and discriminatory treatment based on

10   disagreements over the use of the Albanian language and

11   flag, they had submitted evidence of similar mistreatment in

12   their original removal proceedings.     Thus, the BIA

13   reasonably concluded that the evidence did not show a

14   material change in country conditions, only a continuation

15   of the same type of mistreatment that the Kodzas had shown

16   during their original proceedings.     See Matter of S-Y-G-, 24

17   I. & N. Dec. 247, 253 (BIA 2007).

18       The Kodzas’ argument that the BIA erred by finding that

19   the country reports that they submitted with their motion

20   were “outdated” is without merit.     As the Kodzas’ motion to

21   reopen was filed in June 2010, and the most recent country

22   reports they submitted were dated 2009, and primarily


                                   3
 1   addressed events that took place in 2008 and earlier, the

 2   BIA reasonably found that the reports were not current.     To

 3   the extent that the Kodzas’ argument can be construed as a

 4   challenge to the evidentiary weight that the agency afforded

 5   the reports, it is similarly unavailing.     See Xiao Ji Chen

 6   v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).

 7       The Kodzas’ argument that the BIA erred in finding that

 8   the 2010 news articles they submitted with their motion only

 9   showed “isolated clashes” between Macedonian authorities and

10   ethnic Albanians is also unpersuasive.     As the six 2010 news

11   articles submitted by the Kodzas provided accounts of only

12   two different confrontations involving gunfire between

13   Macedonian authorities and ethnic Albanians, the BIA

14   reasonably found that the news articles described “isolated”

15   events.     Moreover, the articles describing the confrontation

16   between Macedonian authorities and ethnic Albanian arms

17   smugglers demonstrate, at most, possible “police

18   mistreatment motivated by animus against suspected

19   [criminals] of any ethnicity, religion, or political

20   opinion.”     Lecaj v. Holder, 616 F.3d 111, 118 (2d Cir.

21   2010).

22



                                     4
 1       Finally, the Kodzas’ claim that the BIA improperly took

 2   administrative notice of facts in a recent State Department

 3   report without giving the Kodzas advance notice and an

 4   opportunity to respond is not supported by the record.    In

 5   any event, even if the BIA had taken administrative notice

 6   of facts in the State Department report without providing

 7   the Kodzas with an opportunity to challenge the facts, that

 8   error would be harmless because nothing in the record

 9   suggests that the BIA gave the administratively noticed

10   facts dispositive weight in deciding the motion.     See Ajdin

11   v. Bureau of Citizenship & Immigration Servs., 437 F.3d 261,

12   266 (2d Cir. 2006).

13       Because substantial evidence supports the BIA’s finding

14   that the Kodzas failed to demonstrate changed country

15   conditions, the BIA did not abuse its discretion in denying

16   their motion to reopen as untimely.   See 8 U.S.C.

17   § 1229a(c)(7)(C)(i), (ii); Jian Hui Shao, 546 F.3d at 169.

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

21   is VACATED, and any pending motion for a stay of removal in

22   this petition is DISMISSED as moot. Any pending request for


                                   5
1   oral argument in this petition is DENIED in accordance with

2   Federal Rule of Appellate Procedure 34(a)(2), and Second

3   Circuit Local Rule 34(b).

4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk
6
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