20-189 Kandic v. Garland BIA A076 002 014 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 14th day of February, two thousand twenty-two. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 REENA RAGGI, 10 Circuit Judges. 11 _____________________________________ 12 13 HAKO KANDIC, 14 Petitioner, 15 16 v. 20-189 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gregory Marotta, Law Office of 24 Gregory Marotta, Vernon, NJ. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; 28 Jessica E. Burns, Senior 29 Litigation Counsel; Juria L. 1 Jones, Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, D.C.

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

9 Petitioner Hako Kandic, a native of the former Yugoslavia

10 and citizen of Montenegro, seeks review of a December 19,

11 2019 decision of the BIA denying his third motion to reopen.

12 In re Hako Kandic, No. A 076 002 014 (B.I.A. Dec. 19, 2019).

13 We assume the parties’ familiarity with the underlying facts

14 and procedural history.

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

16 abuse of discretion. Jian Hui Shao v. Mukasey,

,

17 168-69 (2d Cir. 2008). “We will identify such abuse only if

18 the Board’s decision inexplicably departs from established

19 policies or is so devoid of rational explanation as to raise

20 concern that it acted in an arbitrary or capricious manner.”

21 Scarlett v. Barr,

(2d Cir. 2020) (internal

22 quotation marks omitted). We find no abuse of discretion

23 here.

24 Kandic’s motion to reopen, his third such motion, filed 2 1 approximately 15 years after the agency’s final order of

2 removal, was both untimely and number barred. See 8 U.S.C.

3 § 1229a(c)(7)(A), (C)(i) (authorizing petitioner to file one

4 motion to reopen proceedings within 90 days of final

5 administrative order of removal);

(c)(2)

6 (same). The time and number limitations do not apply if

7 reopening is sought to apply or reapply for asylum and the

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

9 country of nationality or the country to which removal has

10 been ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii). This

11 exception obtains, however, only if such evidence is

12 “material and was not available and would not have been

13 discovered or presented at the previous proceeding.” Id.;

14 accord

(c)(3).

15 The BIA did not err in finding that this exception did

16 not apply because Kandic’s evidence was not material. In

17 Kandic’s underlying removal proceedings, the immigration

18 judge (“IJ”) made an adverse credibility determination based

19 on significant inconsistencies between Kandic’s in-court

20 testimony on the one hand and his written asylum application

21 and testimony before an asylum officer on the other.

22 Specifically, Kandic testified inconsistently concerning his

3 1 membership in political parties; his involvement in political

2 demonstrations; and the extent of the harm he suffered on

3 account of such activities.

4 In moving to reopen, Kandic submitted reports and

5 affidavits describing ongoing political tensions in

6 Montenegro, including an affidavit from his brother asserting

7 that police were still looking for Kandic on account of his

8 prior political activities. Because this was the same factual

9 predicate for Kandic’s underlying claim, he was required to

10 rebut the IJ’s adverse credibility determination to secure

11 reopening. See Paul v. Gonzales,

(2d Cir.

12 2006) (holding that petitioner can secure reopening

13 notwithstanding IJ’s prior adverse credibility determination

14 if “factual predicate of . . . claim of future persecution is

15 independent of” testimony found not to be credible (emphasis

16 in original)); Kaur v. BIA,

(2d Cir. 2005)

17 (upholding BIA’s denial of motion to reopen on ground that

18 “evidence submitted . . . was not ‘material’ because it did

19 not rebut . . . adverse credibility finding” supporting IJ’s

20 denial of underlying asylum application).

21 The BIA reasonably concluded that Kandic did not rebut

22 the IJ’s adverse credibility determination. Both Kandic’s

4 1 own affidavit and his brother’s maintain that Kandic would be

2 persecuted in Montenegro based on his prior political

3 activities, and his country conditions evidence purports to

4 show worsening political tension in Montenegro. None of this

5 evidence, however, casts doubt on the IJ’s adverse

6 credibility determination because it does not explain the

7 many inconsistencies between Kandic’s in-court testimony and

8 his prior statements. Even if his or his brother’s statements

9 could rehabilitate Kandic’s credibility, the BIA was not

10 required to credit those statements in light of the underlying

11 credibility determination concerning those same facts. See

12 Qin Wen Zheng v. Gonzales,

, 147–48 (2d Cir. 2007)

13 (identifying no error in BIA’s rejection of documentary

14 evidence given underlying credibility concerns).

15 Kandic argues that the IJ’s adverse credibility

16 determination violated due process because he had not been

17 prepared to proceed pro se at his hearing. He seeks remand

18 to allow him to testify with the assistance of counsel. In

19 reviewing the denial of a motion to reopen, however, “we are

20 precluded from passing on the merits of the underlying

21 exclusion proceedings” and, instead, must “confine our review

22 to the denial of the petitioner’s motion to reopen.” Paul,

5 1

(internal quotation marks omitted).

2 Accordingly, where, as here, “an asylum applicant does not

3 file a timely appeal disputing the BIA’s affirmance of the

4 IJ’s credibility ruling” — whether on due process or other

5 grounds — “a motion to reopen does not provide a collateral

6 route by which the [applicant] may challenge the validity of

7 the original credibility determination.”

In any event,

8 Kandic does not explain how counsel’s absence during his

9 testimony bore on the credibility determination. He asserts

10 only that he testified under duress due to the lack of

11 counsel. But such a conclusory claim does not persuade given

12 Kandic’s failure, as noted supra, to explain the

13 inconsistencies between his testimony and his prior

14 statements.

15 Accordingly, the BIA did not abuse its discretion in

16 denying Kandic’s motion to reopen because he relied on his

17 original claim and “did not rebut the adverse credibility

18 finding that provided the basis for the IJ’s denial of [his]

19 underlying asylum application.” Kaur,

.

6 1 For the foregoing reasons, the petition for review is

2 DENIED. All pending motions and applications are DENIED and

3 stays VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court

7