Keivani v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 23, 2007
Charles R. Fulbruge III
Clerk
No. 06-60351
Summary Calendar
FARIBA KEIVANI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 534 120
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Fariba Keivani, a native and citizen of Iran, petitions this
court for review of the BIA’s denial of her motion to reopen
removal proceedings. Keivani concedes that she previously filed
a motion to reopen and that her instant motion was filed more
than 90 days after the BIA completed its administrative review,
contrary to the rules in 8 U.S.C. § 1003.2(c)(2). She contends,
however, that she is not subject to these rules because her
conversion to Christianity resulted in changed country conditions
in Iran. The BIA rejected this argument and denied Keivani’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-60351
-2-
motion to reopen, reasoning that an individual’s religious
conversion did not constitute a change in a country’s conditions.
An alien is not bound by number or timing requirements for
filing a motion to reopen if her request for relief “is based on
changed country conditions arising in the country of nationality
or the country to which removal has been ordered, if such
evidence is material and was not available and would not have
been discovered or presented at the previous proceeding.”
8 U.S.C. § 1229a(c)(7)(C)(ii); § 1003.2(c)(3)(ii). Evidence
presented by Keivani establishes that any policy of torturing or
persecuting Christians in Iran preceded her initial hearing
before the BIA. The fact that Keivani’s conversion made this
fact more relevant to her case does not establish a “changed
country condition,” as required by § 1229a. The BIA did not
abuse its discretion in denying Keivani’s motion to reopen. See
Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006).
Keivani also argues that the BIA’s failure to consider her
requests for nondiscretionary relief, in the forms of withholding
of removal and relief under the Convention Against Torture,
constituted a denial of due process. Because Keivani failed to
raise this claim before the BIA, and because the BIA could have
corrected any due process problem by granting the motion to
reopen, the claim is unexhausted and this court is barred from
considering it. Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.
2004); Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001).
Keivani’s petition for review is DENIED.