11-3980 Radoncic v. Barr BIA A073 033 467 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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 9th day of May, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 DEBRA ANN LIVINGSTON, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 HAJRAN RADONCIC, 14 Petitioner, 15 16 v. 11-3980 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Charles Christophe, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Briena L. 27 Strippoli, Senior Litigation 28 Counsel; Matthew B. George, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 DC. 1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Hajran Radoncic, a native of the former

6 Yugoslavia and citizen of Montenegro, seeks review of a

7 September 13, 2011, decision of the BIA denying his motion to

8 reopen his removal proceedings. In re Hajran Radoncic, No.

9 A 073 033 467 (B.I.A. Sept. 13, 2011). We assume the parties’

10 familiarity with the underlying facts, procedural history in

11 this case, and issues on appeal.

12 We review the BIA’s denial of a motion to reopen for

13 abuse of discretion but review any finding regarding changed

14 country conditions for substantial evidence. See Jian Hui

15 Shao v. Mukasey,

(2d Cir. 2008).

16 Radoncic does not dispute that his motion to reopen filed in

17 2011 was untimely because the BIA affirmed his removal order

18 in 2002. See 8 U.S.C. § 1229a(c)(7)(C)(i) (90-day deadline

19 for filing motion to reopen);

(c)(2) (same).

20 However, the time limitation for filing a motion to reopen

21 does not apply if reopening is sought to apply for asylum and

22 the motion is “based on changed country conditions arising in

23 the country of nationality or the country to which removal 2 1 has been ordered, if such evidence is material and was not

2 available and would not have been discovered or presented at

3 the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii);

4 see also

(c)(3)(ii).

5 The BIA did not abuse its discretion in denying

6 reopening. Radoncic’s motion to reopen did not identify

7 specific grounds for his fear of persecution but referenced

8 his original asylum application, in which he alleged past

9 persecution and a fear of future persecution on account of

10 his Albanian ethnicity, Muslim religion, anti-communist

11 beliefs, and refusal to serve in the army. Although the new

12 articles submitted by Radoncic with his motion vaguely

13 described human rights violations, discrimination,

14 politically motivated violence, and organized crime in

15 Montenegro, they did not pertain to the grounds he alleged as

16 the basis for his fear, nor did they offer a basis for

17 determining if circumstances had changed. Accordingly,

18 Radoncic’s new evidence was not material. See Lecaj v.

19 Holder,

(2d Cir. 2010) (noting that evidence

20 reflecting “ongoing police abuses” in Montenegro was

21 irrelevant where evidence did not “link those abuses” to the

22 grounds for the asylum claim).

23 Moreover, the BIA acted within its discretion in 3 1 concluding that Radoncic failed to address, and the evidence

2 failed to rebut, the adverse credibility determination

3 underlying the denial of his original asylum application.

4 See Kaur v. BIA,

(2d Cir. 2005) (holding

5 that the BIA properly denied the petitioner’s motion to reopen

6 where its order “clearly explained that the evidence

7 submitted by petitioner in support of her motion was not

8 ‘material’ because it did not rebut the adverse credibility

9 finding that provided the basis for the IJ’s denial of

10 petitioner’s underlying asylum application”).

11 The BIA therefore did not abuse its discretion by denying

12 the motion as untimely because Radoncic failed to satisfy the

13 only available exception to the limitations period. See 8

14 U.S.C. § 1229a(c)(7)(C)(ii). As such, contrary to his

15 argument, the BIA was not required to address his prima facie

16 eligibility for asylum relief. See INS v. Abudu,

94, 104-05 (1988) (observing that the agency may deny an

18 untimely motion to reopen for failure to demonstrate material

19 change in conditions or prima facie eligibility for the

20 substantive relief sought); INS v. Bagamasbad,

,

21 25 (1976) (“As a general rule courts and agencies are not

22 required to make findings on issues the decision of which is

23 unnecessary to the results they reach.”). 4 1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of removal

3 that the Court previously granted in this petition is VACATED,

4 and any pending motion for a stay of removal in this petition

5 is DISMISSED as moot. Any pending request for oral argument

6 in this petition is DENIED in accordance with Federal Rule of

7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8 34.1(b).

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court

5