Mevlan Lita v. Atty Gen USA

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: BARRY, HARDIMAN and STAPLETON, Circuit Judges. Total Pages: 8.

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Date Filed: 04/01/2011

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 10-2821
____________
MEVLAN LITA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A098-690-014)
Immigration Judge: Henry S. Dogin
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 1, 2011
Before: BARRY, HARDIMAN and STAPLETON, Circuit Judges
(Opinion filed April 1, 2011 )
____________
OPINION
____________

PER CURIAM
Mevlan Lita (“Lita”) petitions for review of the Board of Immigration Appeals‟
final order of removal. For the reasons that follow, we will deny the petition for review.

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Lita, a native and citizen of Albania, is removable under Immigration &
Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an overstay. He
applied for asylum, withholding of removal, and protection under the Convention Against
Torture, claiming a fear of persecution on account of political opinion. Lita claimed that
he and his family members were persecuted in Albania by members of the Socialist Party
because of their activities on behalf of the Democratic Party. Following a merits hearing
on August 10, 2005, the Immigration Judge denied relief, concluding that Lita was not
credible because of omissions and inconsistencies in his case, and the lack of
documentation. The IJ granted his application for voluntary departure and issued an
alternate order of removal to Albania. On February 22, 2007, the Board of Immigration
Appeals dismissed the appeal, concluding that there was no clear error in the IJ‟s
credibility determination, 8 C.F.R. § 1003.1(d)(3)(i). The Board reasoned that the IJ
properly rested his determination on material inconsistencies between Lita‟s testimony,
his original asylum application, and his second application.
We denied Lita‟s petition for review on May 21, 2008, explaining that: “there
were true and numerous inconsistencies in Lita‟s case for relief. His statements and
testimony ... contain inconsistencies and omissions, which, taken together, call his
credibility into question. Taken in isolation, each inconsistency noted by the Board
might be considered minor.... But they are still inconsistencies in evidence or admissions
involving the „heart of the asylum claim….‟ When asked to explain, Lita gave weak and
unconvincing reasons for the omissions and inconsistencies.” Lita v. Att‟y Gen. of U.S.,
279 Fed. Appx. 115, 121 (3d Cir. 2008) (citation omitted). With regard to the issue of a
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well-founded fear of persecution, we stated that the “2004 Country Report establishes the
rise of the Democratic Party within Albania and does not cite instances of Democratic
Party members being singled out for persecution, and Lita‟s uncle, a victim of past
persecution, safely visited Albania in 2003.” Id. at 121-22.
Lita failed to depart voluntarily. On November 24, 2009, he filed a motion to
reopen removal proceedings, stating that he was applying for asylum based on changed
conditions in Albania. Lita claimed that his parents had recently been threatened, that
their property had been damaged, and that his father had been physically assaulted by
members of the Socialist Party because of his family‟s continued activities in support of
the Democratic Party. Lita attached the following items to his motion: (1) declaration of
Ferit Lita dated 8/25/09; (2) declaration of Met Sufa; (3) declaration of Shpressa Lita; (4)
second declaration of Ferit Lita; (5) declaration of Zyber Lita dated 8/20/09; (6)
certification of Diber District Attorney Arben Nika; (7) declaration of Luljeta Lita; (8)
2008 State Department Country Report for Albania; (9) UK Border Agency Operational
Guidance Note; and (10) photographs of a bullet-ridden car. The Department of
Homeland Security opposed reopening proceedings.
On May 24, 2010, the Board denied the motion to reopen. The Board remarked
first that the motion was 2½ years late, 8 C.F.R. § 1003.2(c)(2), and, in addition, that Lita
had not addressed his credibility problem, notwithstanding that his current claim was
essentially the same as his original claim. The Board went on to determine that Lita‟s
new evidence reflected a continuation of “a high degree of conflict between the Socialist
Party and the Democratic Party, especially in certain regions. These circumstances have
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existed since the demise of Communism in the early 1990‟s.” A.R. 2. The Board noted
that the Democratic Party has continued to win elections for the majority of seats in the
Albanian government. Thus, Lita‟s evidence of conflict between his father and the
Socialists in 2008 and 2009, even if believed, reflected a continuation of events as they
existed during the original proceedings, and did not reflect a change that would excuse
the untimeliness of his motion to reopen. The Board also determined that Lita‟s evidence
did not show that he is more likely than not to be subjected to torture by or with the
consent or acquiescence of the Albanian government, “such that a change relevant to a
claim under the Convention Against Torture has been demonstrated.” See id. at 3.
Lita has timely petitioned for review. We have jurisdiction under 8 U.S.C. §
1252(a)(1), (b)(1). Lita contends in his brief on appeal that the Board abused its
discretion by failing to consider and discuss all of his evidence submitted in support of
his motion, which, if previously available, would have resulted in a favorable credibility
finding and changed the outcome of his case. See Petitioner‟s Brief, at 8.
We will deny the petition for review. We review the Board‟s denial of a motion to
reopen for abuse of discretion. Immigration & Naturalization Serv. v. Doherty, 502 U.S.
314, 323 (1992). Under this deferential standard of review, we will not disturb the
Board‟s decision unless it is arbitrary, irrational, or contrary to the law. See Guo v.
Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). “A motion to reopen proceedings shall state
the new facts that will be proven at a hearing to be held if the motion is granted and shall
be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). “A
motion to reopen proceedings shall not be granted unless it appears to the Board that
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evidence sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing.” Id.
The “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,” id. at
1003.2(c)(2), except that the time limitation does not apply where the alien seeks to
“apply or reapply for asylum or withholding of deportation based on changed
circumstances arising in the country of nationality or in the country to which deportation
has been ordered, if such evidence is material and was not available and could not have
been discovered or presented at the previous hearing,” id. at 1003.2(c)(3)(ii). See also 8
U.S.C. § 1229a(c)(7)(C)(ii).
We conclude that the Board‟s determination that Lita failed to demonstrate
changed country conditions sufficient to excuse his untimely motion to reopen was not
arbitrary, irrational, or contrary to law. Under the standards we set forth in Zheng v.
Att‟y Gen. of U.S., 549 F.3d 260, 268 (3d Cir. 2008), the Board must explicitly consider
any country conditions evidence that materially bears on an applicant‟s claim, see id. at
268. The declarations Lita attached to his motion did not show a change of conditions.
A declaration from Lita‟s father's cousin, Zyber Lita, states that, on May 20, 2008, he
saw Ferit Lita and he was bleeding from his nose and mouth. Ferit told Zyber that four
Socialists had beaten him up on a bridge and threatened to kill him because he would not
provide financial support for the Socialists‟ electoral campaign. A.R. 51. A declaration
from police employee Met Sufa states that, on April 27, 2009, Lita‟s father met Sufa and
reported the violence used against him by the Socialists of the Dypjake village. Sufa told
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Lita‟s father that he could do nothing and that he should go to the trial attorneys‟ office to
make a denunciation. See id. at 29. A declaration from Lita‟s mother states that, after
Ferit Lita went to the trial attorneys‟ office to denounce the Socialists, powerful
Socialists, on June 7, 2009, shot up their car and ruined it. They left a note stating that
bad things would happen every time the family denounced the Socialists. Again, her
husband went to the police to complain, this time with pictures of the bullet-riddled car.
See id. at 33.
Lita also attached the State Department‟s 2008 Human Rights Report on Albania
to his motion to reopen. It notes that parliamentary elections were held in 2005; they
“only partly met international standards,” but the political parties “operated without
restriction or outside interference.” See id. at 70. The Report notes that the Albanian
police forces have a problem with unprofessional behavior and corruption, and “overall
performance of law enforcement remained weak,” id. at 65, but “the Ministry of Interior
started a new recruiting system with standardized procedures” which was expected to
improve the performance of the police, id.
The December 2, 2008 “Operational Guidance Note” on Albania, published by the
United Kingdom, states that from 1997- 2005, Albania was ruled by the Socialist Party,
but, in July, 2005, the Democratic Party won the parliamentary elections and the
Democratic Party leader became prime minister. See id. 78, 87. The election failed to
“fully meet international standards,” but “was praised for bringing Albania‟s first rotation
of power without significant violence in the post-Communist era.” Id. at 78. Albania‟s
political parties now “operate without restriction or outside interference.” Id. at 87. The
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Democratic Party is currently in power, and “although the authorities do not legislate
against, prosecute or persecute opposition political parties[,] some rogue elements of [the
Democratic Party‟s] local/regional organization may do so. However, there is no
evidence … that individual members of any political party would not be able to access
protection from the authorities should they need it.” Id. Judiciary and law enforcement
agencies remained “inefficient and prone to corruption,” id. at 78, but “[t]hose claiming
to face threats from political opponents should be able to seek protection from the
authorities or internally relocate to escape a localized threat” from members of an
opposing political party, id. at 87.
Lita‟s new evidence did not establish a change in conditions in Albania. In his
initial asylum application, he claimed that his family had been persecuted by members of
the Socialist Party because of their active support of the Democratic Party. In his motion
to reopen, Lita asserted that his family members, most especially his father, continue to
actively support the Democratic Party and that, as a result, his family continues to be
harassed by supporters of the Socialist Party. The 2008 State Department Report and
December, 2008 UK Operational Guidance Note indicate that the Democratic Party won
the last parliamentary election in 2005, and that, while some political violence still occurs
in Albania, the situation is probably improving, but certainly not deteriorating. During
the original proceedings, the documentary evidence revealed similar conditions. We
explained:
[T]he Administrative Record contains the State Department's Country
Report on Human Rights Practices for Albania for 2004. It states that
municipal elections took place in 2003, and they met basic democratic
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standards. The Democratic and Socialist parties held the majority of seats in
the Parliament. The record also contains a State Department Profile of
Asylum Claims and Country Conditions for Albania, which states that 1997
was the most chaotic year in Albanian history, but there have been no major
outbreaks of political violence since 1998, and neither the Albanian
government nor the major political parties engage in policies of abuse
against their political opponents. There were, however, small-scale clashes
between individual competing party supporters during the period from
2000-2003.
Lita, 279 Fed. Appx. at 118.
Thus, rather than showing a change in country conditions that provides him with
new grounds for asylum, the evidence Lita proffered in his motion to reopen shows at
most that country conditions and his father‟s circumstances remain essentially unchanged
from what they were when Lita first filed his asylum application. Although the Board‟s
discussion of the evidence was terse, it was sufficient. We are confident that the Board
adequately reviewed the entire record in reaching its decision that Lita failed to meet his
burden of proof, especially in light of the fact that Lita‟s claim had previously been
denied on the basis of his lack of credibility and the newly proffered declarations did
nothing to rehabilitate his credibility. Cf. Guo, 386 F.3d at 562 (prior adverse credibility
finding for religious persecution claim was not relevant to subsequent motion to reopen
asserting claim based on China‟s coercive population control policies).
For the foregoing reasons, we will deny the petition for review.

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