Fran Dedaj v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 03-4725
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FRAN DEDAJ,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
___________
On Petition for Review of a Decision by the
Board of Immigration Appeals
(No. A76-016-190 )
___________
Submitted Under Third Circuit LAR 34.1(a)
December 13, 2004
Before: NYGAARD, ROSENN, and BECKER, Circuit Judges.
(Filed: December 21, 2004)
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1. The Department of Homeland Security now handles the enforcement functions of
the Immigration and Naturalization Service.
2
OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Petitioner Fran Dedaj is a native and citizen of Albania who petitions this
Court for review of a final order of removal by the Board of Immigration Appeals
(Board). We have jurisdiction under 8 U.S.C. § 1252 and now deny the petition.
I.
Dedaj arrived in the United States in September of 1999. He was detained
upon entering the United States and the Immigration and Naturalization Service (INS)1
issued a Notice to Appear. In October of 1999, Dedaj appeared before an Immigration
Judge and conceded removability. At the hearing, he filed a claim for asylum,
withholding of removal, and protection under the Convention Against Torture (CAT).
These claims were ultimately heard on the merits and denied. Dedaj appealed the
decision to the Board which conducted a de novo review of his claim. His claims for
relief were again denied.
On September 16, 2003 Dedaj filed a motion to reopen with the Board
based on newly discovered evidence that would support his claim. After reviewing his
motion, the Board declined to reopen the case. The Board determined that Dedaj had not

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met the heavy burden necessary to reopen an application for asylum, withholding of
removal or protection under CAT. The Board also concluded that the evidence presented
by Dedaj was not highly probative of his claims and was an attempt to relitigate the
claims already denied by the Board. Petitioner now appeals the Board’s refusal to reopen
his case.
II.
As we write only for the parties, we review the facts briefly. Dedaj was a
member of the Democratic Party in Albania. Although no longer a Communist country,
the majority party in Albania is the Socialist Party, which consists mainly of former
members of the Communist Party. The event that precipitated Dedaj’s flight from
Albania was the murder of his brother, Tonin. According to Dedaj, his brother was killed
by operatives of the Socialist Party. When Dedaj attempted to prosecute his brother’s
killer, he was confronted by members of the Socialist Party and told that he too would be
killed if he continued his investigation. Shortly thereafter, Mr. Dedaj went into hiding
and came to the United States.
These facts formed the basis of Mr. Dedaj’s initial claim for asylum,
withholding of removal, and protection under CAT. In his motion to reopen, Dedaj
submitted additional support for these claims. Specifically, he submitted a letter from the
Democratic Party in Albania, supporting his claim that he was a member, and letters from

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his surviving brothers regarding Tonin’s death and Dedaj’s involvement with the
Democratic Party.
III.
Motions to reopen are governed by Title 8 of the Code of Federal
Regulations, Section 1003.2. Wether to reopen a case is a decision within the discretion
of the board. 8 C.F.R. § 1003.2(a). Motions to reopen, like motions for a new trial, are
traditionally disfavored. INS v. Abudu, 485 U.S. 94, 110 (1988). Indeed, the Board may
deny such a motion even if the party makes out a prima facie case for relief. 8 C.F.R. §
1003.2(a); Abudu, 485 U.S. at 105-6. There is a strong public interest in bringing the
litigation to a close as promptly as fairness allows. Abudu, 485 U.S. at 107. Thus, in
situations such as this, where the Board finds that the Petitioner has not introduced
material, previously unavailable evidence, we review only for abuse of discretion. Id. at
105-6; Sevoian v. Ashcroft, 290 F.3d 166, 169-70 (3d Cir. 2002).
IV.
Dedaj has not established that the Board abused its discretion. The Board
found that Dedaj was attempting to relitigate arguments that he made previously in his
initial application and appeal. (App. at 2). The relevant regulation is written in the
negative and provides that motions to reopen “shall not be granted unless” the evidence
offered by the Petitioner is “material and was not available and could not have been
discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). The evidence

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presented by Dedaj is simply an expansion of the evidence presented at his initial hearing.
He has not established that the additional evidence is material. The factual basis for
Dedaj’s claim has not changed based on the additional evidence—he still seeks asylum
based on his membership in the Democratic Party. Dedaj has not established that this
evidence was previously unavailable to him.
Furthermore, the evidence does not show that Dedaj was eligible for
political asylum. Despite the fact that Dedaj and his brother were politically active, and
that his brother’s death may have been due to his political beliefs, Dedaj testified that the
masked men stated only that they were threatening him because he was seeking his
brother’s killer. An asylum applicant must present evidence that compels the conclusion
that the alleged persecutors desire to punish him “on account of” one of the protected
grounds. See Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003). The Board did not abuse
its discretion in finding that Dedaj failed to meet his substantial burden of presenting new,
material evidence. The Petition for Review is denied.

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