Apetyonok v. Holder ( 2009 )

08-5654-ag
Apetyonok v. Holder
BIA
A078 716 256
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 11 th day of December, two thousand nine.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 REENA RAGGI,
10 Circuit Judges.
11 _________________________________________
12
13 SVETLANA VYACHESLAVOVNA APETYONOK,
14 Petitioner,
15
16 v. 08-5654-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL, *
20 Respondent.
21 _________________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Alexander J. Segal, The Law Offices
2 of Grinberg & Segal, P.L.L.C.,
3 New York, New York.
4
5 FOR RESPONDENT: Tony West, Assistant Attorney
6 General; Stephen J. Flynn, Assistant
7 Director; Jeffrey R. Meyer,
8 Attorney, Office of Immigration
9 Litigation, United States Department
10 of Justice, Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED, that the petition for review
15 is DENIED.
16 Petitioner Svetlana Vyacheslavovna Apetyonok, a native
17 and citizen of Belarus, seeks review of the October 27, 2008
18 order of the BIA denying her motion to reopen. In re
19 Svetlana Vyacheslavovna Apetyonok, No. A078 716 256 (B.I.A.
20 Oct. 27, 2008). We assume the parties’ familiarity with the
21 underlying facts and procedural history of the case.
22 We review the BIA’s denial of a motion to reopen for
23 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
24 Cir. 2006). When the BIA considers relevant evidence of
25 country conditions in evaluating a motion to reopen, we
26 review the BIA’s factual findings under the substantial
27 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
2
1 138, 169 (2d Cir. 2008). An alien seeking to reopen
2 proceedings must file her motion to reopen no later than 90
3 days after the date on which the final administrative
4 decision was rendered. See 8 C.F.R. § 1003.2(c)(2).
5 In this case, it is undisputed that Apetyonok’s June
6 2008 motion was untimely inasmuch as the BIA issued a final
7 order of removal in July 2005. See id. However, there is
8 no time limit for filing a motion to reopen if it is “based
9 on changed circumstances arising in the country of
10 nationality or in the country to which deportation has been
11 ordered, if such evidence is material and was not available
12 and could not have been discovered or presented at the
13 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The BIA
14 reasonably found that Apetyonok’s motion to reopen did not
15 qualify for such an exception.
16 Contrary to Apetyonok’s argument, the BIA considered
17 the country conditions evidence in the record and adequately
18 indicated the basis for its determination that conditions
19 for political activists had not significantly worsened in
20 Belarus. See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d
21 Cir. 2006)(citing Xiao Ji Chen v. U.S. Dep’t of Justice, 434
22 F.3d 144, 160 n.13 (2d Cir. 2006)). Indeed, the BIA
3
1 reasonably found that the country conditions evidence in the
2 record indicated that conditions in Belarus remained poor
3 for political activists, but did not demonstrate that
4 conditions had materially worsened since the time of
5 Apetyonok’s hearing before the Immigration Judge. See 8
6 C.F.R. § 1003.2(c)(3)(ii); see also Norani v. Gonzales, 451
7 F.3d 292, 294 & n.3 (2d Cir. 2006). Moreover, Apetyonok’s
8 reliance on Serafimovich v. Ashcroft, 456 F.3d 81 (2d Cir.
9 2006), and Poradisova v. Gonzales, 420 F.3d 70 (2d Cir.
10 2005), is misplaced because those cases concern country
11 conditions in Belarus during different time periods than the
12 one at issue here. Because we find that the BIA did not err
13 in finding that Apetyonok did not demonstrate a material
14 change in country conditions, we need not reach Apetyonok’s
15 argument that the BIA erred in finding that she was not
16 prima facie eligible for relief from removal. See 8 C.F.R.
17 § 1003.2(c)(2),(3).
18 Finally, we reject Apetyonok’s due process challenge
19 because she has no due process right in seeking a
20 discretionary grant of a motion to reopen. See Yuen Jin v.
21 Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008); Gomez-Palacios
22 v. Holder, 560 F.3d 354, 361 n.2 (5th Cir. 2009); Iglesias
4
1 v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008). In any
2 event, Apetyonok received ample process.
3 For the foregoing reasons, the petition for review is
4 DENIED. Having completed our review, we DISMISS the
5 petitioner's pending motion for a stay of removal as moot.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
10 By:___________________________
5