No. 10-1443-ag.United States Court of Appeals, Second Circuit.
June 15, 2011.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Andrew P. Johnson, Law Offices of Andrew P. Johnson, New York, N.Y., for Petitioner.
Tony West, Assistant Attorney General; Richard M. Evans, Assistant Director; Jeffrey J. Bernstein, Attorney, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.
PRESENT: JOSÉ A. CABRANES, ROBERT D. SACK, DEBRA ANN LIVINGSTON, Circuit Judges.
SUMMARY ORDER
Petitioner, Fikret Bektesevic, a native and citizen of the former Yugoslavia, seeks review of a March 19, 2010, decision of the BIA denying his motion to reopen his removal proceedings. In re Fikret Bektesevic, No. A078 710 584 (B.I.A. March 19, 2010). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Alt v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard See Jian Hui Shoo v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
The BIA did not err in denying Bektesevic’s untimely motion to reopen. “[A] party may file only one motion to reopen deportation or exclusion proceedings . . . and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened, or on or before September 30, 1996, whichever is later.” 8 C.F.R. § 1003.2(c)(2).Indisputably, Bektesevic’s September 2009; motion was untimely because it was filed almost four years after the BIA’s September 2005 decision dismissing his appeal. The 90-day filing deadline for motions to reopen does not apply, however, if a motion is “based on changed circumstances arising in the country of nationality . . .
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[and] if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).The BIA reasonably concluded that the evidence Bektesevic submitted in support of his motion was not material, and therefore could not meet the “heavy burden” necessary to demonstrate that reopening was warranted. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90
(1988).
In support of his motion, Bektesevic submitted a letter from friends and family members stating that, as an ethnic Bosniak, he would suffer discrimination and harassment if returned to Kosovo. He also submitted several news articles discussing increasing ethnic tensions between Albanians and Serbs in Kosovo. However, as Bektesevic acknowledges in his brief, he is neither Albanian nor Serbian, and none of the evidence he submitted discussed how conditions for Bosniaks had deteriorated or changed since Kosovo’s declaration of independence. Accordingly, the BIA did not abuse its discretion in denying his untimely motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii) (noting that new evidence submitted with a motion to re-open must be material); Jian Hui Shao, 546 F.3d at 169.
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 DISMISSED 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).