Oksana Averianova v. Eric H. Holder, Jr. ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3167
___________
Oksana Averianova, *
*
Petitioner, *
* Petition for Review from the
v. * Board of Immigration Appeals.
*
Eric H. Holder, Jr.,1 Attorney *
General of the United States, *
*
Respondent. *
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Submitted: October 20, 2009
Filed: January 28, 2010
___________
Before RILEY, HANSEN and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Oksana Averianova entered the United States on a temporary visa in January
1996, but she remained here unlawfully after her visa expired. She applied for
asylum, and the former Immigration and Naturalization Service (“INS”)2 initiated
1
Eric H. Holder, Jr., became the Attorney General on February 3, 2009, and is
automatically substituted as respondent under Rule 43(c)(2) of the Federal Rules of
Appellate Procedure.
2
The INS ceased to exist on March 1, 2003, and its functions were transferred
to the Department of Homeland Security. See Homeland Security Act of 2002, Pub.
L. No. 107-296, 116 Stat. 2135.
removal proceedings. On November 30, 2004, an Immigration Judge (“IJ”) found
Averianova removable and denied her application for asylum, withholding of removal,
and protection under the Articles of Convention Against Torture (“CAT”). The Board
of Immigration Appeals (“BIA”) adopted and affirmed the IJ’s decision, and we
denied her petition for review. See Averianova v. Mukasey, 509 F.3d 890 (8th Cir.
2007). On June 19, 2007, Averianova filed a motion to reopen removal proceedings
based on her family situation, which the BIA denied. On April 14, 2008, Averianova
filed a motion to reconsider the BIA’s denial of her initial motion to reopen and a
second motion to reopen removal proceedings, this time based on changed country
conditions. The BIA denied these motions on August 25, 2008, and Averianova now
petitions for review.
I. BACKGROUND
On November 29, 1995, Averianova, a native and citizen of Uzbekistan, filed
an application for a non-immigrant visa to visit the United States. Averianova averred
that she intended to visit the United States for one month, that she did not have any
relatives in the United States, and that neither she nor anyone on her behalf had ever
expressed to a U.S. immigration official an interest in immigrating to the United
States. The State Department approved Averianova’s application, and she entered the
United States in January 1996 with a temporary visa. Averianova remained in the
United States unlawfully after her visa expired on July 25, 1996.
In May 1999, nearly three years after her visa expired, Averianova applied for
asylum. Contradicting her 1995 visa application, Averianova admitted that her mother
had been in the United States since 1991 and that she had listed Averianova as a
derivative beneficiary on a 1993 asylum application. Averianova claimed that she fled
Uzbekistan to escape persecution on account of her Jewish ethnicity and religion and
that she feared returning to Uzbekistan. She described several instances of alleged
persecution in Uzbekistan, including being taunted and beaten at school. Averianova
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also claimed that her family was continually harassed and threatened for being Jewish.
She submitted no evidence to corroborate these claims.
On August 25, 1999, an asylum officer interviewed Averianova about her
asylum application. The officer found Averianova’s testimony “vague, inconsistent,
and unbelievable,” and the INS referred her asylum application to an IJ and initiated
removal proceedings. During her removal proceedings, which commenced on
February 4, 2000, Averianova renewed her application for asylum and withholding
of removal and sought protection under the CAT. Averianova submitted several
documents, including an alleged birth certificate, to establish her Jewish ethnicity.
The INS investigated the contents of these documents and determined that they were
fraudulent. See Averianova, 509 F.3d at 893-94 (describing the fraudulent
documents).
On November 30, 2004, after holding several evidentiary hearings, the IJ denied
Averianova’s application for asylum, withholding of removal, and protection under
the CAT, and ordered her removed to Uzbekistan. The IJ found that Averianova
failed to corroborate any of her claims of persecution and harassment and concluded
that she was not credible because she had submitted fraudulent documents in an
attempt to establish that she was Jewish. The BIA adopted and affirmed the IJ’s
decision, and we denied Averianova’s petition for review. See id. at 895 (“The
combination of an adverse credibility finding and a lack of corroborating evidence for
the claim of persecution means that the applicant’s claim fails, ‘regardless of the
reason for the alleged persecution.’” (quoting Sivakaran v. Ashcroft, 368 F.3d 1028,
1029 (8th Cir. 2004))).
On June 19, 2007, Averianova filed a motion to reopen removal proceedings.
She argued that reopening was warranted because her husband had become a U.S.
citizen and had applied for a visa that, if approved, would allow her to apply for
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adjustment of status.3 Because her motion was untimely, Averianova asked the BIA
to exercise its discretion to reopen the case sua sponte. The BIA declined to reopen
the case sua sponte and denied Averianova’s motion on March 7, 2008.
On April 14, 2008, Averianova filed a motion with the BIA entitled, “Motion
for Reconsideration & Motion to Reopen Removal Proceedings Due to Changed
Country Conditions.” The BIA treated this motion as two separate motions: one
seeking reconsideration of its previous denial of Averianova’s motion to reopen and
another seeking to reopen under 8 C.F.R. § 1003.2(c)(3)(ii) based on changed country
conditions.4 On August 25, 2008, the BIA denied both motions on their merits.
Averianova petitions for review of the denial of her motion to reconsider and second
motion to reopen.
II. DISCUSSION
We first consider whether we have jurisdiction to review the BIA’s denial of
Averianova’s motion to reconsider its denial of her initial motion to reopen. We held
in Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) (en banc) (per curiam), that
“the decision whether to reopen removal proceedings sua sponte is committed to the
BIA’s discretion by law . . . [and] we lack jurisdiction to review the agency’s
discretionary decision,” id. at 1001 (internal citation omitted). Thus, because
Averianova’s initial motion to reopen sought relief under the BIA’s discretionary
authority to reopen removal proceedings sua sponte, we would not have jurisdiction
to review the BIA’s denial of that motion. This does not, however, deprive us of
jurisdiction to review the denial of Averianova’s motion to reconsider. We have held
repeatedly that we have jurisdiction to review the denial of a motion to reconsider
3
Averianova married Vladimir Kashirsky, an asylee of Uzbekistan, on
September 2, 2000.
4
For the sake of clarity, we will also treat Averianova’s April 14, 2008 motion
as two separate motions.
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even when we lack jurisdiction to review the denial of the underlying motion. See,
e.g., Al Milaji v. Mukasey, 551 F.3d 768, 773-74 (8th Cir. 2008); Esenwah v. Ashcroft,
378 F.3d 763, 765 (8th Cir. 2004) (holding that “review of the denial of a motion for
reconsideration does not mean the court has exercised jurisdiction over the BIA’s
underlying [order]” because the orders “remain separate and distinct”); De Jimenez
v. Ashcroft, 370 F.3d 783, 789 (8th Cir. 2004).5
Although we have jurisdiction to review the BIA’s denial of Averianova’s
motion to reconsider, the Government argues that Averianova waived this claim by
failing to discuss it in her opening brief. In her reply brief, Averianova asserts that she
challenged the BIA’s denial of her motion to reconsider on pages forty to forty-three
of her opening brief. These pages contain Averianova’s argument that the BIA abused
its discretion in denying her second motion to reopen because it failed to analyze her
evidence of changed circumstances in Uzbekistan. Averianova’s discussion of the
motion to reconsider is limited to a conclusory assertion that the BIA’s failure to
analyze her evidence of changed country conditions also means that the BIA abused
its discretion in denying her motion to reconsider. However, Averianova’s initial
5
The circuits are split on the question of whether they have jurisdiction to
review the denial of a motion to reconsider where they lack jurisdiction to review the
denial of the underlying order. Compare Martinez-Maldonado v. Gonzales, 437 F.3d
679, 683 (7th Cir. 2006) (“[W]e lack jurisdiction over motions to reopen and
reconsider in cases where we lack jurisdiction to review the underlying order.”), Daud
v. Gonzales, 207 Fed. Appx. 194, 204 (3d Cir. 2006) (unpublished) (same), Santos-
Salazar v. U.S. Dep’t of Justice, 400 F.3d 99, 103 (2d Cir. 2005), Infanzon v. Ashcroft,
386 F.3d 1359, 1362 (10th Cir. 2004), Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1262
(11th Cir. 2003), and Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir. 1997), with
Onwuamaegbu v. Gonzales, 470 F.3d 405, 406-07 (1st Cir. 2006) (reviewing the
BIA’s denial of a motion for reconsideration even though the court lacked jurisdiction
to review the underlying order), and Stone v. INS, 13 F.3d 934, 935 (6th Cir. 1994)
(“While we have no jurisdiction to review the underlying deportation order, we do
have jurisdiction to determine whether the Board abused its discretion in denying the
petitioner’s motion to reconsider the order.”), aff’d on other grounds, 514 U.S. 386
(1995).
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motion to reopen sought relief based on her changed personal circumstances, not
changed circumstances in Uzbekistan. Consequently, whether the BIA considered
Averianova’s evidence of changed country conditions is irrelevant to the denial of her
motion to reconsider, which sought review of the BIA’s denial of Averianova’s initial
motion to reopen. Because Averianova provides no meaningful argument in her
opening brief to support her claim that the BIA abused its discretion in denying her
motion to reconsider, we decline to consider this claim. See Mambwe v. Holder, 572
F.3d 540, 550 n.7 (8th Cir. 2009); see also Chay-Velasquez v. Ashcroft, 367 F.3d 751,
756 (8th Cir. 2004); Navarijo-Barrios v. Ashcroft, 322 F.3d 561, 564 n.1 (8th Cir.
2003).
We now turn to the BIA’s denial of Averianova’s second motion to reopen.
Generally, an alien may file only one motion to reopen removal proceedings. 8 C.F.R.
§ 1003.2(c)(2). However, an alien may file a second motion to reopen if she shows
“changed circumstances arising in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material and was not available and
could not have been discovered or presented at the previous hearing.” Id. at §
1003.2(c)(3)(ii).
“Because motions to reopen are disfavored, . . . we review the BIA’s decision
regarding changed country conditions under a highly deferential abuse of discretion
standard.” Li Yun Lin v. Mukasey, 526 F.3d 1164, 1165 (8th Cir. 2008) (per curiam)
(citing Zhong Qin Zheng v. Mukasey, 523 F.3d 893, 894 (8th Cir. 2008)). The BIA
abuses its discretion if its “decision is without rational explanation, departs from
established policies, invidiously discriminates against a particular race or group, or
where [it] fails to consider all factors presented by the alien or distorts important
aspects of the claim.” Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997) (citing
Nyonzele v. INS, 83 F.3d 975, 979 (8th Cir. 1996)). To support her motion to reopen
based on changed circumstances in Uzbekistan, Averianova filed numerous
documents, including news articles and State Department country reports. In denying
her motion to reopen, the BIA concluded, “We . . . find that the applicant’s motion
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does not qualify for the changed country conditions exception set forth at 8 C.F.R. §
1003(c)(3)(ii). Thus, we find that the applicant has not demonstrated changed
conditions in Uzbekistan that would excuse the untimely filing of her second motion.”
Averianova argues that the BIA abused its discretion and violated the Due Process
Clause by failing to meaningfully consider and discuss her evidence of changed
country conditions.
We have held that the BIA must “consider the issues raised and announce its
decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.” Kipkemboi v. Holder, 587 F.3d 885, 891 (8th
Cir. 2009) (quoting Rodriguez-Rivera v. INS, 993 F.2d 169, 170 (8th Cir. 1993) (per
curiam)). We have also held that “[i]t is not necessary for the BIA to list every
possible positive and negative factor in its decision,” Rodriguez-Rivera, 993 F.2d at
170-71, and that the BIA has “no duty to write an exegesis on every contention,”
Barragan-Verduzco v. INS, 777 F.2d 424, 426 (8th Cir. 1985) (quoting Osuchukwu
v. INS, 744 F.2d 1136, 1142 (5th Cir. 1985)). Moreover, “the Board is entitled to a
presumption of regularity.” Makonnen v. INS, 44 F.3d 1378, 1384 (8th Cir. 1995)
(citation and internal quotation marks omitted); see also Kamara v. Att’y Gen. of U.S.,
420 F.3d 202, 212 (3d Cir. 2005) (“Agency action is entitled to a presumption of
regularity, and it is the petitioner’s burden to show that the BIA did not review the
record when it considered the appeal.”).
In this case, Averianova’s motion to reopen was number-barred, but she argued
to the BIA that it should consider her motion based on her evidence of changed
circumstances. The BIA specifically concluded that Averianova did not demonstrate
changed conditions in Uzbekistan, so it denied her motion to reopen. “While the BIA
must consider . . . evidence [of changed circumstances], it may do so in summary
fashion without a reviewing court presuming that it has abused its discretion.” Wei
Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006). Because Averianova “has
failed to come forth with any facts showing that the BIA . . . [made] its decision
without” adequately considering her evidence of changed circumstances in
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Uzbekistan, we cannot conclude that the BIA abused its discretion or violated her due
process rights when it denied her motion to reopen. See Rodriguez-Rivera, 993 F.2d
at 171; see also Albathani v. INS, 318 F.3d 365, 379 (1st Cir. 2003) (suggesting that
summary affirmance by the BIA does not “establish that the required review is not
taking place”); Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th Cir. 1991) (“[T]he burden
is on the petitioners to convince us that the BIA gave short shrift to the evidence they
presented.”).
Averianova also argues that it is not clear whether “changed circumstances”
under § 1003.2(c)(3)(ii) can include a petitioner’s changed personal circumstances in
the United States or whether it is limited to changed circumstances in a petitioner’s
country of nationality or in the country to which removal has been ordered.
According to Averianova, because the phrase, “changed circumstances,” has various
meanings in different regulations, she lacked notice that “changed circumstances”
under § 1003.2(c)(3)(ii) refers exclusively to changed country conditions. She argues
that the ambiguity in the regulation “is a clear example” of a due process violation.
We reject this argument. The regulation unambiguously states that an applicant must
show “changed circumstances arising in the country of nationality or in the country
to which deportation has been ordered,” id. (emphasis added), and we have previously
held that motions to reopen based on § 1003.2(c)(3)(ii) cannot be premised on
changed personal circumstances arising from conditions outside the country of feared
persecution, Zhong Qin Zheng, 523 F.3d at 895.
Finally, Averianova argues that the limitation of “changed circumstances” to
changed country conditions violates the Equal Protection Clause. “To establish an
equal protection violation, [Averianova] must identify a class of similarly situated
persons who are treated dissimilarly.” See Geach v. Chertoff, 444 F.3d 940, 945 (8th
Cir. 2006). Averianova argues that aliens who are not subject to a final order of
removal that is more than ninety days old may establish asylum eligibility by showing
a change in personal circumstances but that aliens who remain in the United States for
more than ninety days following a final removal order must show changed
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circumstances in their country of nationality in order to file a number-barred motion
to reopen. In making this argument, Averianova fails to recognize that the two groups
are not similarly situated. Even if the two groups were similarly situated, however,
Averianova’s claim would still fail. “Disparate treatment of similarly situated aliens
will be upheld . . . if the Government has a rational basis for its classifications.” Id.
In this case, we conclude that the Government has a rational basis for preventing
aliens like Averianova, who remain in the United States for more than ninety days
following final orders of removal, from being able to file successive motions to reopen
removal proceedings merely by changing their personal circumstances. See Wen Ying
Zheng v. Mukasey, 509 F.3d 869, 871 (8th Cir. 2007) (“[I]t would be ironic, indeed,
if petitioners . . . who have remained in the United States illegally following an order
of deportation, were permitted to have a second and third bite at the apple simply
because they managed to marry and have children while evading authorities.” (quoting
Wei Guang Wang, 437 F.3d at 274)). Thus, we conclude that Averianova’s equal
protection claim also fails.6
III. CONCLUSION
For the foregoing reasons, we deny Averianova’s petition for review.7
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6
Because “our judicial review is limited to the administrative record,” Lukowski
v. INS, 279 F.3d 644, 646 (8th Cir. 2002), we deny Averianova’s pending motion to
supplement the record. See Grass v. Gonzales, 418 F.3d 876, 879 (8th Cir. 2005).
7
Averianova also argues that the BIA erred in denying her application for
asylum, withholding of removal, and protection under the CAT. Because the only
subject of Averianova’s petition for review is the BIA’s denial of her April 14, 2008
“Motion for Reconsideration & Motion to Reopen Removal Proceedings Due to
Changed Country Conditions,” we need not address the merits of her underlying
claims.
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