Gjolaj v. Lynch

U.S. Court of Appeals for the Second Circuit
Gjolaj v. Lynch, 617 F. App'x 38 (2d Cir. 2015)
Ann, Chin, Debra, Denny, Livingston, Raggi, Reena

Gjolaj v. Lynch

Opinion

SUMMARY ORDER

Petitioner Marjana Gjolaj, a native and citizen of Albania, seeks review of a March 24, 2014, decision of the BIA denying her motion to reopen. In re Marjana Gjolaj, No. A095 461 583 (B.I.A. Mar. 24, 2014). We review the BIA’s denial of a motion to reopen for abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

An alien seeking to reopen proceedings may file a motion to reopen no later than 90 days after the date on which the final administrative decision was ren *40 dered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no dispute that Gjolaj’s 2014 motion to reopen is untimely because the BIA issued a final order of removal in 2004. Although the time limitations do not apply if the motion “is based on 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 proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003'.2(c)(3)(ii), we find no error in the BIA’s conclusion that Gjo-laj failed to establish any material change in conditions.

First, Gjolaj incorrectly argues that the Immigration Judge (“IJ”) failed to render an adverse credibility determination. In fact, the IJ explicitly denied Gjolaj’s original application on credibility grounds. The BIA may deny reopening where new evidence does not rebut an “adverse credibility finding that provided the basis for the IJ’s denial of petitioner’s underlying asylum claim.” Kaur, 413 F.3d at 234. Here, the alleged change — the rise to power of the Socialist Party — is not material because Gjolaj was found not credible with respect to her political activities. Accordingly, the BIA reasonably denied her motion for failure to submit material evidence of changed country conditions. Id.; 8 U.S.C. § 1229a(c)(7)(C)(ii).

Second, Gjolaj argues that human trafficking in Albania has worsened such that reopening is appropriate to allow her to apply for asylum on that basis. The BIA’s conclusion that the evidence shows a continuation of prior conditions is supported by substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). The BIA, comparing “evidence ' of country conditions submitted with the motion to those that existed at the time of the merits hearing,” In re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007), reasonably found that human trafficking has not significantly worsened since Gjolaj’s merits hearing. The 2001 State Department Report, in evidence during Gjolaj’s 2004 merits hearing, describes serious problems with human trafficking similar to those contained in the 2013 State Department Report. The 2001 Report states that Albania had recently passed its first laws aimed at trafficking. In 2010, however, “[t]he government, continued to improve its capacity to identify, protect, and reintegrate trafficking victims.” U.S. Dep’t of State, Trafficking in Persons Report 2010 — Albania, 14 June 2010, available at http://www.unhcr.org/refworld/decid/4c 18840f20.html (last visited Apr. 13, 2015). In sum, the evidence shows, at most, a continuation of the conditions present at Gjolaj’s merits hearing; therefore, the BIA’s finding that human trafficking had not worsened is supported by substantial evidence. Jian Hui Shao, 546 F.3d at 169.

Finally, contrary to Gjolaj’s argument, the BIA gave reasonable consideration to the evidence in the record. We “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir. 2006). The agency is not required to “expressly parse or refute on the record each individual argument or piece of evidence offered.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (internal quotation marks omitted). Here, “the record [does not] compellingly suggest[ ]” that the BIA ignored Gjolaj’s evidence, but instead suggests that the agency gave thorough consideration, explicitly addressing State Department reports and the expert affidavit. Xiao Ji Chen, 471 F.3d at 337 n. 17.

*41 For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

Reference

Full Case Name
Marjana GJOLAJ, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent
Status
Unpublished