Tikhonova v. Holder , 407 F. App'x 501 ( 2010 )

09-3341-ag
Tikhonova v. Holder
BIA
A077 571 902
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 October, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 LARISSA MIKHAILOVNA TIKHONOVA,
14 Petitioner,
15
16 v. 09-3341-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Alexander Tsiring, Brooklyn, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Ernesto H. Molina, Jr.,
28 Assistant Director, Drew C.
29 Brinkman, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED in part and DISMISSED in part.
5 Petitioner Larissa Mikhailovna Tikhonova, a native of
6 the former U.S.S.R. and citizen of Russia, seeks review of
7 the July 10, 2009, order of the BIA denying her second
8 motion to reopen. In re Larissa Mikhailovna Tikhonova, No.
9 A 077 571 902 (B.I.A. July 10, 2009). We assume the
10 parties’ familiarity with the underlying facts and
11 procedural history of the case.
12 I. Scope of Review
13 As a preliminary matter, in her briefs, Tikhonova
14 attempts to challenge all of the decisions the agency
15 rendered in the course of her proceedings. However, we lack
16 jurisdiction to review Tikhonova’s challenges to the BIA’s
17 June 2008 decision because she did not file a timely
18 petition for review of that decision. See Kaur v. BIA, 413
19 F.3d 232, 233 (2d Cir. 2005). Additionally, we lack
20 jurisdiction to review both the IJ’s November 2002 decision
21 and the BIA’s February 2004 decision because we have already
22 once dismissed Tikhonova’s petition for review of those
23 decisions. Thus, we limit our review to Tikhonova’s
24 challenge to the denial of her second motion to reopen.
2
1 II. The BIA’s July 2009 Decision
2 The BIA did not abuse its discretion in denying
3 Tikhonova’s untimely and number-barred motion to reopen.
4 See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). The
5 regulations provide that “a party may file only one motion
6 to reopen deportation or exclusion proceedings . . . and
7 that motion must be filed no later than 90 days after the
8 date on which the final administrative decision was rendered
9 in the proceeding sought to be reopened, or on or before
10 September 30, 1996, whichever is later.” 8 C.F.R.
11 § 1003.2(c)(2). Indisputably, Tikhonova’s January 2009
12 motion was untimely and number-barred. However, the time
13 limitations do not apply if the alien can establish
14 materially “changed circumstances arising in the country of
15 nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). Additionally,
16 the time and numerical limitations may be equitably tolled
17 to accommodate claims of ineffective assistance of counsel.
18 See Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).
19 A. Changed Country Conditions
20 The BIA reasonably found that Tikhonova’s decision to
21 become a Baptist was a changed personal circumstance, not a
22 changed country condition. See Yuen Jin v. Mukasey, 538
23 F.3d 143, 155 (2d Cir. 2008); Wei Guang Wang v. BIA, 437
3
1 F.3d 270, 274 (2d Cir. 2006). Moreover, we find no merit in
2 Tikhonova’s argument that the BIA ignored the evidence she
3 submitted in concluding that she did not otherwise
4 demonstrate changed country conditions. We have rejected
5 the notion that the agency “must expressly parse or refute
6 on the record each individual argument or piece of evidence
7 offered by the petitioner.” Wei Guang Wang, 437 F.3d at 275
8 (internal quotation marks omitted); see also Xiao Ji Chen v.
9 U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)
10 (noting that the Court “presume[s] that [the agency] has
11 taken into account all of the evidence before [it], unless
12 the record compellingly suggests otherwise.”).
13 Moreover, to the extent Tikhonova relies on the 2009
14 Department of State Report, that document was not submitted
15 to the BIA. Therefore, we decline to consider it in the
16 first instance. 8 U.S.C. § 1252(b)(4)(A); Xiao Xing Ni v.
17 Gonzales, 494 F.3d 260, 265-66 (2d Cir. 2007).
18 As to the BIA’s finding that the evidence submitted in
19 support of the motion to reopen was insufficient to
20 demonstrate that country conditions had changed with respect
21 to the treatment of Baptists in Russia, we find that
22 determination to be supported by substantial evidence
4
1 because, as the BIA found, the evidence submitted identified
2 only isolated attacks and did not establish that Baptists
3 were treated differently than they had been at the time of
4 Tikhonova’s original proceedings. See Jian Hui Shao v.
5 Mukasey, 546 F.3d 138 (2d Cir. 2008) (holding that this
6 Court reviews the BIA’s fact-finding regarding changed
7 country conditions “only for substantial evidence.”). Nor,
8 for similar reasons, did the BIA err in determining that
9 Tikhonova failed to establish her prima facie eligibility
10 for relief. See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d
11 Cir. 2005).
12 B. Ineffective Assistance
13 The BIA also did not abuse its discretion in declining
14 to equitably toll the filing deadline for Tikhonova’s motion
15 to reopen because, as it found, even assuming that her
16 motion was timely and she had satisfied the requirements set
17 forth in Matter of Lozada, reopening was not warranted
18 because at her merits hearing she waived any opportunity to
19 apply for withholding of removal and CAT relief. See Kaur,
20 413 F.3d at 233 (“An abuse of discretion may be found in
21 those circumstances where the Board’s decision provides no
22 rational explanation, inexplicably departs from established
5
1 policies, is devoid of any reasoning, or contains only
2 summary or conclusory statements; that is to say, where the
3 Board has acted in an arbitrary or capricious manner.”)
4 (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,
5 93 (2d Cir. 2001)). Although Tikhonova argues that such
6 waiver was not voluntary, that argument is belied by the
7 record. The BIA also found that Tikhonova failed to
8 demonstrate that she was prejudiced by her prior attorneys’
9 representation. Romero v. INS, 399 F.3d 109, 112 (2d Cir.
10 2005); Matter of Assaad, 23 I & N Dec. 553 (BIA 2003).
11 Tikhonova does not challenge that finding, waiving any such
12 argument. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1,
13 545 n.7 (2d Cir. 2005).
14 For the foregoing reasons, the petition for review is
15 DENIED in part and DISMISSED in part. As we have completed
16 our review, any stay of removal that the Court previously
17 granted in this petition is VACATED, and any pending motion
18 for a stay of removal in this petition is DISMISSED as moot.
19 Any pending request for oral argument in this petition is
20 DENIED in accordance with Federal Rule of Appellate
21 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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