533 F. App'x 30

Gjelosh LELCAJ, Ana Lelcaj, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 12-1688 NAC.

United States Court of Appeals, Second Circuit.

Oct. 3, 2013.

Michael P. DiRaimondo, DiRaimondo & Masi, LLP, Melville, NY, for Petitioners.

Stuart F. Delery, Acting Assistant Attorney General; Ernesto H. Molina, Jr., Assistant Director; Dana M. Camilleri, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondents.

*31PRESENT: ROBERT D. SACK, BARRINGTON D. PARKER, and DEBRA ANN LIVINGSTON, Circuit Judges.

SUMMARY ORDER

Petitioners Gjelosh and Ana Lelcaj, husband and wife and natives and citizens of Albania, seek review of a March 29, 2012, decision of the BIA denying their motion to reopen their removal proceedings. In re Gjelosh Lelcaj, Ana Lelcaj, Nos. [ AXXX XXX XXX ]/553 (BIA Mar. 25, 2012). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). An alien seeking to reopen proceedings is required to file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered and is permitted to file only one such motion. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that Petitioners’ third motion to reopen, filed in 2011, was untimely and number-barred because their orders of removal became final in 2002. See 8 U.S.C. § 1101(a)(47)(B)(i).

Petitioners contend, however, that the birth of their U.S.-citizen daughter and an increase in the kidnapping of young women for forced prostitution in Albania constitute materially changed country conditions excusing their motion from the applicable time and numerical limitations. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).

Initially, we note that Petitioners do not challenge the BIA’s finding that their motion did not comply with the governing regulatory requirements, and they have therefore waived review of that dispositive determination. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005) (providing that issues not argued in briefs are deemed waived). Indeed, Petitioners did not support their motion to reopen with an updated application for asylum, withholding of removal, and relief under the Convention Against Torture, despite 8 C.F.R. § 1003.2(c)(l)’s requirement that a “motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation.” (emphasis added). Because Petitioners have declined to challenge this dispositive finding, we do not consider their remaining arguments, which relate to the BIA’s treatment of their country conditions evidence. See INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). We do, however, note that Petitioners previously moved for reopening on the basis of the purported increase in kidnappings of young women for forced prostitution in Albania, which the BIA found to reflect a continuation rather than a material change in country conditions — a finding that we previously affirmed on appeal.

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).

Lelcaj v. Holder
533 F. App'x 30

Case Details

Name
Lelcaj v. Holder
Decision Date
Oct 3, 2013
Citations

533 F. App'x 30

Jurisdiction
United States

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