Kacaj v. Barr BIA A095 474 444

18-1696
Kacaj v. Barr
BIA
A095 474 444
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.

At a stated term of the United States Court of Appeals 1
for the Second Circuit, held at the Thurgood Marshall 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 3
rd
day of March, two thousand twenty. 4
5
PRESENT: 6
PETER W. HALL, 7
SUSAN L. CARNEY, 8
JOSEPH F. BIANCO, 9
Circuit Judges. 10
_____________________________________ 11
12
EJLL KACAJ, 13
Petitioner, 14
15
v. 18-1696 16
NAC 17
WILLIAM P. BARR, UNITED STATES 18
ATTORNEY GENERAL, 19
Respondent. 20
_____________________________________ 21
22
FOR PETITIONER: James A. Lombardi, New York, NY. 23
24
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 25
General; John S. Hogan, Assistant 26
Director; Laura Maroldy, Trial 27
Attorney, Office of Immigration 28
Litigation, United States 29
Department of Justice, Washington, 30
DC. 31

2

UPON DUE CONSIDERATION of this petition for review of a 1
Board of Immigration Appeals (“BIA”) decision, it is hereby 2
ORDERED, ADJUDGED, AND DECREED that the petition for review 3
is DENIED. 4
Petitioner Ejll Kacaj, a native and citizen of Albania, 5
seeks review of a May 8, 2018 decision of the BIA denying his 6
motion to reopen his removal proceedings. In re Ejll Kacaj, 7
No. A095 474 444 (B.I.A. May 8, 2018). We assume the parties’ 8
familiarity with the underlying facts and procedural history 9
in this case. 10
We review the BIA’s denial of a motion to reopen for 11
abuse of discretion and its country conditions determination 12
for substantial evidence. See Jian Hui Shao v. Mukasey, 546 13
F.3d 138, 168–69 (2d Cir. 2008). An alien seeking to reopen 14
may file one motion to reopen no later than 90 days after the 15
final administrative decision. 8 U.S.C. § 1229a(c)(7)(A), 16
(C)(i); 8 C.F.R. § 1003.2(c)(2). It is undisputed that 17
Kacaj’s 2017 motion to reopen was number-barred and untimely 18
because it was his second motion to reopen and it was filed 19
more than 12 years after his 2004 order of removal. However, 20
the time and number limitations for filing a motion to reopen 21
do not apply if the motion is filed in order to apply for 22

3

asylum “based on changed country conditions arising in the 1
country of nationality or the country to which removal has 2
been ordered, if such evidence is material and was not 3
available and would not have been discovered or presented at 4
the previous proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 5
see also 8 C.F.R. § 1003.2(c)(3)(ii). 6
“In determining whether evidence accompanying a motion 7
to reopen demonstrates a material change in country 8
conditions that would justify reopening, [the BIA] compare[s] 9
the evidence of country conditions submitted with the motion 10
to those that existed at the time of the merits hearing 11
below.” In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007). 12
The agency did not abuse its discretion in finding that 13
Kacaj’s evidence was insufficient to establish a material 14
change in conditions in Albania. 15
First, Kacaj submitted country conditions evidence 16
showing tensions between political parties and abuses of 17
political protestors and journalists critical of the 18
government. The agency did not abuse its discretion in 19
finding that this evidence was not material because the agency 20
previously found Kacaj not credible as to his claim that he 21
was a political dissident or active in Albania’s Democratic 22

4

Party. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) 1
(finding no abuse of discretion in denial of reopening where 2
new evidence “did not rebut [underlying] adverse credibility 3
finding”). In any event, this evidence did not show 4
conditions that were materially worse than those existing at 5
the time of Kacaj’s 2004 hearing. 6
Second, Kacaj submitted declarations from friends and 7
family in Albania, largely concerning his claims regarding 8
past events. The agency did not err in assigning this 9
evidence “minimal weight” because the authors were interested 10
parties not available for examination and because of the 11
agency’s prior adverse credibility finding. See Y.C. v. 12
Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to 13
agency’s decision to afford little weight to relative’s 14
letter from China because it was unsworn and from an 15
interested witness); Qin Wen Zheng v. Gonzales, 500 F.3d 143, 16
146-47 (2d Cir. 2007) (holding that the BIA may reasonably 17
rely on an adverse credibility finding in the underlying 18
asylum proceedings in evaluating the evidence presented in 19
support of a motion to reopen). Even if the agency had 20
afforded this evidence more weight, it did not support the 21
conclusion that conditions had materially worsened for Kacaj 22

5

in Albania since 2004, as the authors alleged that threats 1
against Kacaj and his family had persisted for decades. 2
Because the record supports the BIA’s conclusion that 3
Kacaj failed to demonstrate a material worsening of 4
conditions for similarly situated people in Albania as needed 5
to excuse the time and number bars to his motion, the BIA did 6
not err in denying his motion to reopen. See 8 U.S.C. 7
§ 1229a(c)(7)(A), (C). Because this finding is dispositive, 8
we do not reach the BIA’s alternative finding that Kacaj 9
failed to establish prima facie eligibility for relief. See 10
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule 11
courts and agencies are not required to make findings on 12
issues the decision of which is unnecessary to the results 13
they reach.”). 14
For the foregoing reasons, the petition for review is 15
DENIED. All pending motions and applications are DENIED and 16
stays VACATED. 17
FOR THE COURT: 18
Catherine O’Hagan Wolfe, 19
Clerk of Court 20