Faton AVDIJAJ, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 457 F. App'x 39

SUMMARY ORDER Petitioner, Faton Avdijaj, of unknown nationality, seeks review of an April 23, 2010, decision of the BIA denying his motion to reopen his removal proceedings. In re Avdijaj, No. [ AXXX XXX XXX ] (B.I.A. April 23, 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. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). The BIA did not abuse its discretion in denying Avdijaj’s motion to reopen as untimely. See id.

A motion to reopen must generally be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceedings sought to be reopened. See 8 U.S.C. § 1229a(c)(7)(C). There is no dispute that Avdijaj’s motion to reopen, filed in October 2009, more than five years after the BIA affirmed the IJ’s denial of his asylum application, was untimely. See id.

Furthermore, the BIA did not abuse its discretion in concluding that Avdijaj failed to submit material evidence of changed country conditions as required to warrant consideration of his untimely motion, see 8 U.S.C. § 1229a(c)(7)(C)(ii), because the evidence he submitted did not rebut the agency’s prior adverse credibility determination, see Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.2005).

Contrary to Avdijaj’s contention, his apology for a “lapse in judgment” in submitting a fraudulent asylum application does not meaningfully address the adverse credibility determination, which was based on multiple alternative grounds, and is not before us in the instant petition. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir.2001).

Because the BIA did not abuse its discretion in denying Avdijaj’s motion on the grounds that he did not provide “material” evidence, ie., evidence relevant to rebut the underlying adverse credibility determination, see Kaur, 413 F.3d at 234, we decline to reach the BIA’s alternative findings that he failed to demonstrate changed country conditions or his prima facie eligibility for CAT relief. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (recognizing that a movant’s failure to produce material evidence is an independent basis for the denial of a motion to reopen).

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).