Khutsishvili v. Holder , 462 F. App'x 134 ( 2012 )

11-1024-ag
Khutsishvili v. Holder
BIA
Hom, IJ
A096 021 873
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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22nd day of February, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 MARIAM KHUTSISHVILI,
14 Petitioner,
15
16 v. 11-1024-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: H. Raymond Fasano, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; James A. Hunolt, Senior
28 Litigation Counsel; Jesse Lloyd
29 Busen, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4 UPON DUE CONSIDERATION of this petition for review of a
5 decision of the Board of Immigration Appeals (“BIA”), it is
6 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
7 review is DENIED.
8 Mariam Khutsishvili, a native and citizen of Georgia,
9 seeks review of a February 17, 2011, decision of the BIA
10 denying her motion to reopen based on changed country
11 conditions, and affirming the March 9, 2010, decision of an
12 Immigration Judge (“IJ”) denying her motion to rescind her
13 in absentia removal order. In re Mariam Khutsishvili, No.
14 A096 021 873 (B.I.A. Feb. 17, 2011), aff’g No. A096 021 873
15 (Immig. Ct. N.Y. City Mar. 9, 2010). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 of this case.
18 Khutsishvili challenges only the BIA’s denial, as
19 untimely, of her motion to reopen to apply for asylum,
20 withholding of removal, and relief under the Convention
21 Against Torture (“CAT”). We review the BIA’s denial of
22 Khutsishvili’s motion to reopen for abuse of discretion.
23 Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). When, as
2
1 here, the BIA considers relevant evidence of country
2 conditions in evaluating a motion to reopen, we review the
3 BIA’s factual findings under the substantial evidence
4 standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169
5 (2d Cir. 2008).
6 An alien may file only one motion to reopen and must do
7 so within 90 days of the agency’s final administrative
8 decision. 8 U.S.C. § 1229a(c)(7)(A),(C); 8 C.F.R.
9 § 1003.2(c)(2). Although Khutsishvili’s motion was
10 indisputably untimely because it was filed more than six
11 years after the IJ issued the removal order,
12 see 8 U.S.C. § 1229a(c)(7)(C)(i), there is no time
13 limitation for filing a motion to reopen to apply or reapply
14 for asylum if it is “based on changed country conditions
15 arising in the country of nationality or the country to
16 which removal has been ordered, if such evidence is material
17 and was not available and would not have been discovered or
18 presented at the previous proceeding.” 8 U.S.C.
19 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
20 We find no abuse of discretion in the BIA’s denial of
21 the motion as untimely. As an initial matter, the BIA
22 properly examined whether country conditions had changed
3
1 between the time of the Khutsishvili’s initial proceedings
2 in 2003 and the submission of her motion to reopen in 2009.
3 See Matter of S-Y-G-, 24 I&N Dec. 247, 253 (BIA 2007) (“[I]n
4 determining whether evidence accompanying a motion to reopen
5 demonstrates a material change in country conditions that
6 would justify reopening, [the BIA] compare[s] the evidence
7 of country conditions submitted with the motion to those
8 that existed at the time of the merits hearing below”).
9 Moreover, the BIA did not abuse its discretion in finding
10 that Khutsishvili failed to establish a material change in
11 conditions in Georgia, as she failed to submit any evidence
12 in support of her motion describing Georgia’s treatment of
13 Jehovah’s Witnesses at the time of her 2003 proceedings.
14 See Matter of S-Y-G-, 24 I&N Dec. at 253. Indeed, while
15 Khutsishvili submitted a 2009 State Department report
16 evaluating the status of religious freedom in Georgia and
17 two newspaper articles from 2009 describing incidents of
18 violence against Jehovah’s Witnesses in Georgia, she did not
19 submit any reports or articles that described the Georgian
20 government’s treatment of religious minorities, generally,
21 or Jehovah’s Witnesses, specifically, prior to 2009.
22
4
1 Furthermore, the BIA reasonably concluded that
2 Khutsishvili had not established a material change in
3 country conditions because the evidence in the record, the
4 2009 U.S. Department of State International Religious
5 Freedom Report for Georgia (“2009 Country Report”),
6 indicated that “Jehovah’s Witnesses no longer considered it
7 necessary to hold services in private homes for security
8 reasons,” and “Jehovah’s Witnesses’ leaders reported that
9 harassment at school of their children’s faith decreased
10 significantly during the reporting period.” See 8 U.S.C.
11 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
12 Although Khutsishvili argues that the BIA erred by relying
13 exclusively on the positive statements in the report to find
14 no material change in conditions in Georgia, a reasonable
15 fact-finder would not be compelled to conclude that the BIA
16 ignored any negative findings, as the BIA expressly
17 acknowledged that the report indicated that “problems
18 exist[ed] for minority religious groups, including Jehovah’s
19 Witnesses.” See Jian Hui Shao, 546 F.3d at 169 (noting that
20 the BIA does not need to expressly parse or refute every
21 piece of evidence submitted by the petitioner); Xiao Ji Chen
22 v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.
23 2006) (noting that this Court will “presume that [the BIA]
5
1 has taken into account all the evidence before [it], unless
2 the record compellingly suggests otherwise”); see also Siewe
3 v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“[W]here
4 there are two permissible views of the evidence, the fact
5 finder’s choice between them cannot be clearly erroneous.”).
6 Finally, although the two newspaper articles Khutsishvili
7 submitted described some incidents of violence directed at
8 Jehovah’s Witnesses in Georgia, the BIA did not err in
9 finding that Khutsishvili’s evidence, “on the whole,” did
10 not sufficiently establish a material change in country
11 conditions, as the 2009 Country Report indicated that
12 minority religious groups in Georgia, including Jehovah’s
13 witnesses, “expressed satisfaction with [the government’s]
14 commitment to protecting religious freedom.” See Siewe, 480
15 F.3d at 167.
16 Because the record does not suggest that the BIA
17 ignored any evidence, and because substantial evidence
18 supports the BIA’s conclusion that Khutsishvili failed to
19 establish changed country conditions in Georgia, the BIA did
20 not abuse its discretion in denying her 2010 motion to
21 reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.
22 § 1003.2(c)(2), (c)(3)(ii).
23
6
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
7