18-1621 Duka v. Barr BIA A095 149 726 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. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of December, two thousand nineteen. PRESENT: DENNIS JACOBS, SUSAN L. CARNEY, MICHAEL H. PARK, Circuit Judges. _____________________________________ SHKELQIM DUKA, Petitioner, v. 18-1621 WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: PAUL B. GROTAS, The Grotas Firm, P.C., New York, NY. FOR RESPONDENT: LYNDA A. DO, Attorney (Joseph H. Hunt, Assistant Attorney General; Stephen J. Flynn, Assistant Director, on the brief) for the Office of Immigration Litigation, United States Department of Justice, Washington, DC. 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. Petitioner Shkelqim Duka, a native and citizen of Macedonia, seeks review of a decision of the BIA denying his fifth motion to reopen. In re Shkelqim Duka, No. A095 149 726 (B.I.A. May 2, 2018). We review the BIA’s denial of a motion to reopen for abuse of discretion and the BIA’s conclusion regarding country conditions for substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). The BIA abuses its discretion if its “decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir. 2005) (internal quotation marks omitted). It is undisputed that Duka’s motion was untimely and number barred because it was his fifth motion and his removal order became final in 2005. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i). To avoid the applicable time and number limitations, he had to show a material change in country conditions in Macedonia relevant to his stated fear of persecution arising from his father-in-law’s conviction. See 8 U.S.C. § 1229a(c)(7)(C)(ii). He also had to 2 show his prima facie eligibility for asylum. See INS v. Abudu, 485 U.S. 94, 104–05 (1988) (even assuming a material change in country conditions, the agency may deny reopening where a movant fails to demonstrate prima facie eligibility for relief); see also Jian Hui Shao, 546 F.3d at 168 ...
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