Jonida Cepa Brahollari, et al v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12930
Non-Argument Calendar
____________________
JONIDA CEPA BRAHOLLARI,
DRITAN BRAHOLLARI,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A099-635-674
____________________
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2 Opinion of the Court 21-12930
Before J ORDAN, NEWSOM , and L AGOA , Circuit Judges.
PER CURIAM:
Jonida Cepa Brahollari and Dritan Brahollari (the “Brahol-
laris”) seek review of the Board of Immigration Appeals’s (“BIA”)
order denying their motion to reopen its decision affirming the im-
migration judge’s denial of their application for asylum, withhold-
ing of removal, and United Nations Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punish-
ment (“CAT”) protection. First, they argue that the BIA abused its
discretion in denying their motion because it failed to consider ev-
idence that they were diligent in pursuing their claim and that their
hearing counsel was ineffective. Second, they argue that the BIA
abused its discretion by failing to consider evidence that established
changed circumstances for members of the Democratic Party and
women in Albania. We address each point in turn.
I.
We review the denial of a motion to reopen an immigration
proceeding for an abuse of discretion.
Jiang v. U.S. Att’y Gen., 568
F.3d 1252, 1256 (11th Cir. 2009). Under this standard, we will only
determine whether the BIA exercised its discretion arbitrarily or
capriciously.
Id. The BIA abuses its discretion when it misapplies
the law in reaching its decision or when it fails to follow its own
precedents without providing a reasoned explanation for doing so.
Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013).
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21-12930 Opinion of the Court 3
The petitioner bears a heavy burden in proving arbitrariness or ca-
priciousness because motions to reopen in the context of removal
proceedings are particularly disfavored.
Zhang v. U.S. Att’y Gen.,
572 F.3d 1316, 1319 (11th Cir. 2009).
Arguments not raised in the initial brief, however, are
deemed abandoned, and we need not consider them.
See United
States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc). A
passing reference to an argument, without any reasoned analysis,
is insufficient to preserve that argument on appeal.
United States
v. Stein, 846 F.3d 1135, 1151 n.15 (11th Cir. 2017);
see also United
States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (ex-
plaining that when a defendant does not offer any argument re-
garding an issue on appeal, they are considered to have abandoned
that issue).
II.
An alien may move to reopen a removal order. 8 U.S.C. §
1229a(c)(7). Generally, only one motion to reopen proceedings is
allowed, and it must be filed within ninety days of the date of entry
of the administratively final order of removal.
Id. § 1229a(c)(7)(A),
(C). The time requirement is non-jurisdictional, however, and is
subject to equitable tolling.
Avila-Santoyo v. U.S. Att’y Gen., 713
F.3d 1357, 1365 (11th Cir. 2013). To establish equitable tolling, lit-
igants must show that: (1) they pursued their rights diligently; and
(2) some extraordinary circumstance stood in their way.
Id. at 1363
n.5. The diligence required for equitable tolling purposes is “rea-
sonable diligence,” not maximum feasible diligence.
Holland v.
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4 Opinion of the Court 21-12930
Florida, 560 U.S. 631, 653 (2010). Reasonable diligence does not
require litigants to exhaust every imaginable option, but they must
provide evidence that they made some reasonable efforts.
See
Smith v. Comm’r, Ala. Dep’t of Corr., 703 F.3d 1266, 1271 (11th
Cir. 2012).
For an immigration court to reopen a removal order based
on ineffective assistance of counsel, petitioners must establish both
that: (1) counsel’s performance was deficient to the point that it
impinged upon the fundamental fairness of the hearing such that
the aliens were unable to reasonably present their case; and (2)
counsel’s deficiency prejudiced them.
Dakane v. U.S. Att’y Gen.,
399 F.3d 1269, 1274 (11th Cir. 2005). To demonstrate prejudice,
the petitioners must demonstrate that the performance of counsel
was so inadequate that there is a reasonable probability that, but
for the attorney’s error, the outcome of the proceedings would
have been different.
Sow v. U.S. Att’y Gen., 949 F.3d 1312, 1318
(11th Cir. 2020). Petitioners can establish prejudice by making a
prima facie showing that they would have been eligible for the re-
lief sought.
Dakane, 399 F.3d at 1274–75.
Here, we conclude that the BIA did not abuse its discretion
in denying the Brahollaris’s motion to reopen because they did not
timely file their motion and because they also abandoned any ar-
gument on whether equitable tolling was proper. We also con-
clude that their ineffective assistance claims fail because they do not
explain how they were prejudiced by their hearing counsel’s pur-
ported errors.
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21-12930 Opinion of the Court 5
III.
The ninety-day time limit for motions to reopen does not
apply to applications “for asylum or withholding of deportation
based on changed circumstances arising in the country of national-
ity or in the country to which deportation has been ordered, if such
evidence 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);
accord 8 U.S.C. § 1229a(c)(7)(C)(ii). A motion to
reopen proceedings before the BIA shall state the new facts that
will be proven at the hearing if the motion is granted and shall be
supported by affidavits or other evidentiary material. 8 U.S.C.
§ 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). An alien cannot avoid the
“changed country conditions” requirement in 8 C.F.R.
§ 1003.2(c)(3)(ii) and 8 U.S.C. § 1229a(c)(7)(C)(ii) by demonstrating
only a change in his or her personal circumstances.
Zhang, 572
F.3d at 1319.
“In determining whether evidence accompanying a motion
to reopen demonstrates a material change in country conditions
that would justify reopening, we compare the evidence of country
conditions submitted with the motion to those that existed at the
time of the merits hearing below.”
In re S-Y-G-, 24 I. & N. Dec.
247, 253 (BIA 2007). When weighing the evidence, the BIA is not
required to discuss every piece of evidence or “list every piece of
evidence in the record” to justify its decision.
Jean-Pierre v. U.S.
Att’y. Gen., 500 F.3d 1315, 1325 (11th Cir. 2007).
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6 Opinion of the Court 21-12930
Here, we conclude that the BIA did not abuse its discretion
in determining that the Brahollaris did not sufficiently demonstrate
changed circumstances from the time of their initial hearings―in
2009 and 2011―to the time of their motion to reopen―in
2018―to merit a reopening of proceedings.
Accordingly, we deny the Brahollaris’ petition for review.
PETITION DENIED.
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