Agron Kucana v. ERIC H. HOLDER , J R ., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1002
A GRON K UCANA ,
Petitioner,
v.
E RIC H. H OLDER , J R ., Attorney General
of the United States,
Respondent.
On Remand from the
Supreme Court of the United States
D ECIDED M AY 4, 2010
Before E ASTERBROOK , Chief Judge, and C UDAHY and
R IPPLE , Circuit Judges.
E ASTERBROOK , Chief Judge. The Supreme Court re-
manded this proceeding to us for decision on the merits
after holding that 8 U.S.C. §1252(a)(2)(B) does not affect
judicial review of situations in which immigration offi-
cials’ discretion is specified by regulation rather than
statute. Kucana v. Holder, 130 S. Ct. 827 (2010). Our orig-
inal opinion, 533 F.3d 534 (7th Cir. 2008), had held that

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2 No. 07-1002
a decision by the Board of Immigration Appeals declining
to reopen a removal proceeding may be reviewed only to
determine whether the Board misunderstood a regula-
tion, a statute, or the Constitution. 8 U.S.C. §1252(a)(2)(D).
The Justices concluded that a court of appeals also may
set aside a decision in which the Board has abused
its discretion in applying the law to the facts.
Agron Kucana contends that the Board abused its
discretion in two ways: by not discussing an affidavit
submitted in support of the motion to reopen, and by
disregarding his eligibility for adjustment of status. Our
2008 opinion understood the second of these arguments
to be a legal one and rejected it as forfeited: Kucana
did not make such an argument to the Board, which
is not required to consider possibilities never presented
for decision. 533 F.3d at 538–39. It is unnecessary for us
to revisit that subject. The only remaining question con-
cerns the Board’s decision not to mention the affidavit.
Kucana, a citizen of Albania, entered the United States
as a business visitor in 1995 and did not leave when his
visa expired. He applied for asylum in 1996. When he
did not appear at the hearing in 1997, he was ordered
removed in absentia. Six days later he filed a motion to
reopen, contending that he had overslept. An immigra-
tion judge denied that motion, and in 2002 the Board of
Immigration Appeals affirmed. Kucana did not seek
judicial review—nor did he comply with the order to
depart. In 2006 Kucana filed another motion to reopen.
Kucana, who describes himself as a supporter of democ-
racy and free markets, contended that holders of these

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No. 07-1002 3
views are at risk of beatings and murder in Albania. The
immigration judge denied this motion, and on appeal
the Board held that the IJ lacked jurisdiction, because
successive motions to reopen must be filed directly
with the Board itself.
Treating Kucana’s appellate papers as a second motion
to reopen, the Board denied that relief because conditions
in Albania have not taken a turn for the worse since
2002. That is the right legal question: reopening in an
asylum case depends on proof of “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 pro-
ceeding.” 8 U.S.C. §1229a(c)(7)(C)(ii). The Board observed
that the State Department’s 2005 country report for
Albania describes it as a stable and peaceful parlia-
mentary democracy. More recently Albania has applied
for membership in the European Union, and it joined
NATO in 2009. The 2009 country report concludes that
Albania is a democratic nation that generally respects
human rights and protects the freedom of political dis-
sent. The Democratic Party has been in power since 2005,
and Kucana, who describes himself as an adherent to that
party (and one of its employees between 1992 and 1994),
should not be in fear today on account of his politics.
Kucana argues in this court that the Board abused its
discretion because it did not mention Bernd Fischer’s
affidavit. Professor Fischer narrates Albania’s history of
dictatorship and repression until the fall of the com-

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4 No. 07-1002
munist regime in 1992. Disorder followed, with infighting
and corruption in government, and frequent brutality
by the police and unchecked criminal gangs. The
affidavit’s picture is one of a country in turmoil where
no one was safe. But the key word in this description is
“was.” The affidavit is a historical narrative. It does not
evaluate the risks (if any) that Kucana would have en-
countered in the Albania of 2006, nor does it conclude
that Albania took a turn for the worse between 2002,
when the Board denied Kucana’s first motion to
reopen, and 2006, when he filed his second. To the con-
trary, Prof. Fischer describes improvements in Albania’s
human-rights record.
Fischer deems these improvements inadequate and
notes remaining deficiencies. (The State Department also
finds some shortcomings in Albania’s efforts to protect
political dissidents from private violence and misconduct
by local police, though its view is more optimistic than
Fischer’s.) But to justify reopening Kucana needed to
show that country conditions had deteriorated after
2002 in a way that increased the risks he would face in his
native land. Fischer’s affidavit did not provide any evi-
dence on that score. So the Board was entitled to disre-
gard it—not because the Board automatically may prefer
the State Department’s views over those of other evalua-
tors (it can’t), but because Fischer’s affidavit simply is not
material.
Almost everything Fischer said could have been pre-
sented in 1997 (when Kucana first moved for reopening),
or 2002 (when the Board made its decision on that mo-

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No. 07-1002 5
tion). Only evidence that could not have been presented
earlier supports a motion to reopen, see §1229a(c)(7)(C)(ii)
and 8 C.F.R. §1003.2(c)(1), and then only to show that
risk has increased because of changes in country condi-
tions.
Kucana’s memorandum on remand from the Supreme
Court all but concedes that the argument based on the
Board’s failure to mention Fischer’s irrelevant affidavit is
going nowhere. He asks us to call for a new round of
briefs, and hold another oral argument, so that he can
advance a different contention: that the Democratic Party
comprises antagonistic factions, and that he has angered
the dominant faction by public criticism of its conduct.
Our authority is limited, however, to review of the
Board’s disposition. We must decide whether the BIA
abused its discretion in responding to the arguments
made to it. The argument that Kucana now wants to
advance was not presented to the Board in 2006; it is
therefore not open to Kucana in this court.
He proposes to avoid that problem by contending that
factionalism within the Democratic Party was the basis
of his 1996 application for asylum. This does not help
Kucana, because as we have observed several times
already a motion to reopen must be supported by proof
of changed country conditions; proof that an old condi-
tion has continued does not suffice. Not that the
record shows a current risk of deadly schism within
the Democratic Party; that subject was not addressed
by the papers that the Board had before it in 2006.
If the risk that Kucana would face in Albania has in-
creased materially since 2006, he can file another motion

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6 No. 07-1002
to reopen. The only question open today is whether the
Board abused its discretion when concluding that the
evidence did not show a material adverse change in
country conditions between 2002 and 2006. That decision
did not constitute an abuse of discretion, so the petition
for review is
DENIED .
5-4-10

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