Alfred DARRAGJATI, Petitioner, v. Michael B. MUKASEY, U.S. Attorney General, Respondent, 254 F. App'x 45

SUMMARY ORDER Alfred Darragjati, a native and citizen of Albania, seeks review of a January 10, 2005, order of the BIA affirming the decision of Immigration Judge (“IJ”) Leonard I. Shapiro denying Darragjati’s “motion to reopen/reeonsider” removal proceedings. In re Alfred Darragjati, No. [ AXX XXX XXX ] (B.I.A. Jan. 10, 2005), aff'g No. [ AXX XXX XXX ] (Immig. Ct. Hartford, May 18, 1999). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Where, as here, the BIA adopts the decision of the IJ and supplements that decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the denial of a motion to reopen or reconsider for abuse of discretion. See Kaur v. B.I.A., 413 F.3d 232, 233 (2d Cir.2005) (per curiam); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). The BIA may exceed its allowable discretion where 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, 413 F.3d at 233-34 (quoting Ke Zhen Zhao v. U.S. Dep’t. of Justice, 265 F.3d 83, 93 (2d Cir.2001)). We conclude that the agency did not abuse its discretion in denying Darragjati’s motion to reopen. The regulations provide that a motion to reopen must “state the new facts that will be proven at a hearing.” 8 C.F.R. § 1003.23(b)(3).

The regulations further provide that a motion to reopen may not be granted unless the adjudicator “is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” Id. Here, the BIA properly found that Darragjati failed to show that the evidence he submitted in support of his motion was unavailable at the time of his hearing before the IJ.

Indeed, as the BIA indicated, the asylum application of Darragjati’s sister, the Asylum Approval Letter indicating she had been granted asylum, and the memorandum about the political climate in Albania were all dated prior to Darragjati’s merits hearing on December 8, 1998. While Darragjati asserts that his counsel had no knowledge that his sister had been granted asylum, he does not indicate why that information was not available or could not have been discovered before his merits hearing.

Because Darragjati has not shown compliance with 8 C.F.R. § 1003.23(b)(3), he has failed to show that the agency exceeded its allowable discretion in denying his motion to reopen. See Kaur, 413 F.3d at 234. To the extent that Darragjati’s motion was construed as a motion to reconsider, it was also properly denied. A motion to reconsider must “specify[ ] the errors of fact or law in the Immigration Judge’s prior decision and shall be supported by pertinent authority.” 8 C.F.R. § 1008.23(b)(2); see also In re Cerna, 20 I. & N. Dec. 399, 402 n. 2 (BIA 1991).

Here, the IJ properly denied Darragjati’s motion to reconsider, finding that he “failed to state any additional legal argument, change of law, or an aspect of the case which was overlooked at the time of the decision.” Moreover, Darragjati’s assertion that his sister’s asylum grant was overlooked by the IJ misrepresents the record, as Darragjati did not present that information to the IJ until after the IJ issued the decision denying the asylum application. Accordingly, the agency did not exceed its allowable discretion in denying Darragjati’s motion. Kaur, 413 F.3d at 233-34.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, petitioner’s pending motion for a stay of removal in this petition is DISMISSED as moot.