18-1179 Thaqi v. Barr BIA A076 993 946/947/948/949

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 17th day of August, two thousand twenty. 5 6 PRESENT: 7 DENNIS JACOBS, 8 ROSEMARY S. POOLER, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 MIRADIJE THAQI, AKA MICHELA 14 MARIA ANNA NICORA, ANTON THAQI, 15 AKA LUCAS PETER RIEDER, D.R.T., 16 D.O.T., 17 Petitioners, 18 19 v. 18-1179 20 NAC 21 WILLIAM P. BARR, UNITED STATES 22 ATTORNEY GENERAL, 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Gregory Marotta, Vernon, NJ. 27 28 FOR RESPONDENT: Joseph H. Hunt, Assistant 29 Attorney General; Jessica E. 30 Burns, Claire L. Workman, Senior 31 Litigation Counsel, Office of 32 Immigration Litigation, United 1 States Department of Justice, 2 Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a

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

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

7 is DENIED.

8 Petitioners Miradije Thaqi, Anton Thaqi, D.R.T., and

9 D.O.T., natives of the former Yugoslavia and citizens of

10 Kosovo, seek review of an April 6, 2018, decision of the BIA

11 denying their motion to reopen. In re Miradije Thaqi, Anton

12 Thaqi, D.R.T., D.O.T., Nos. A076 993 946/947/948/949 (B.I.A.

13 Apr. 6, 2018). We assume the parties’ familiarity with the

14 underlying facts and procedural history.

15 The applicable standards of review are well established.

16 See Jian Hui Shao v. Mukasey,

(2d Cir.

17 2008). In their motion to reopen, Petitioners asserted that

18 conditions for Catholics had worsened in Kosovo due to a rise

19 in Islamic extremism, and that these changed conditions

20 excused the untimeliness of their motion and demonstrated

21 their prima facie eligibility for asylum, withholding of

22 removal, and relief under the Convention Against Torture

2 1 based on their Catholic faith.

2 It is undisputed that Petitioners’ 2017 motion was

3 untimely because it was filed 14 years after their removal

4 order became final in 2003. See 8 U.S.C.

5 § 1229a(c)(7)(C)(i);

(c)(2). There is,

6 however, an exception to the time limits if the movant seeks

7 asylum and the motion is “based on changed country conditions

8 arising in the country of nationality or the country to which

9 removal has been ordered, if such evidence is material and

10 was not available and would not have been discovered or

11 presented at the previous proceedings.” 8 U.S.C.

12 § 1229a(c)(7)(C)(ii); see also

(c)(3)(ii).

13 The BIA did not err in finding that Petitioners failed to

14 establish a material change in conditions in Kosovo.

15 “In determining whether evidence accompanying a motion

16 to reopen demonstrates a material change in country

17 conditions that would justify reopening, [the BIA] compare[s]

18 the evidence of country conditions submitted with the motion

19 to those that existed at the time of the merits hearing

20 below.” In re S-Y-G-,

(B.I.A. 2007).

21 As the BIA found, Petitioners failed to submit evidence from 3 1 the time of their hearing so as to establish a baseline for

2 determining whether conditions had changed. Further,

3 contrary to Petitioners’ argument, the BIA explicitly

4 considered their expert’s report and reasonably found that it

5 did not establish a material change in conditions because

6 although it stated that there had been a rise in Islamic

7 extremism in Kosovo, it did not discuss any incidents of

8 Muslims attacking Catholics. Further, the country conditions

9 evidence discusses Albanian Muslims mistreating Serbian

10 Orthodox Christians, but it does not discuss the mistreatment

11 of Albanian Catholics, such as Petitioners. Finally,

12 affidavits from Petitioners’ relatives do not describe a

13 change in conditions in Kosovo.

14 Accordingly, the BIA reasonably concluded that

15 Petitioners failed to demonstrate a material change in

16 conditions in Kosovo, and thus it did not abuse its discretion

17 in denying their motion as untimely. See 8 U.S.C.

18 § 1229a(c)(7)(C). Because the denial of their motion as

19 untimely is dispositive, we do not reach the BIA’s alternative

20 basis for denying their motion; i.e., their failure to

21 establish their prima facie eligibility for relief. See INS 4 1 v. Bagamasbad,

(1976) (“As a general rule

2 courts and agencies are not required to make findings on

3 issues the decision of which is unnecessary to the results

4 they reach.”).

5 Petitioners’ argument that the agency lacked

6 jurisdiction over their removal proceedings because their

7 notices to appear did not include hearing dates is

8 foreclosed by Banegas Gomez v. Barr,

, 110–12

9 (2d Cir. 2019), given that they received notice of their

10 hearings at which they appeared.

11 For the foregoing reasons, the petition for review is

12 DENIED. Petitioners’ motion for a stay of removal, filed

13 October 29, 2018, is DENIED.

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court

5