Case: 19-13865 Date Filed: 09/14/2020 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13865 Non-Argument Calendar ________________________
Agency No. A088-150-956
BAKHODIR SABITOVICH MADJITOV,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(September 14, 2020)
Before JILL PRYOR, BRANCH, and LAGOA, Circuit Judges.
PER CURIAM: Case: 19-13865 Date Filed: 09/14/2020 Page: 2 of 15
Bakhodir Madjitov seeks review of an order of the Board of Immigration
Appeals (“BIA”) denying his motion to reopen removal proceedings as untimely,
pursuant to Immigration and Nationality Act (“INA”) §240(c)(7)(C)(i), 8 U.S.C.
§ 1229a(c)(7)(C)(i). The BIA concluded that Madjitov failed to establish any
exception to the filing deadline because he had not shown that country conditions
in Uzbekistan materially changed since his merits hearing in 2013. It also
concluded that he had not shown that he was prima facie eligible for asylum under
INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3),
8 U.S.C. § 1231(b)(3), or withholding of removal under the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“CAT”), 8 C.F.R. § 208.16(c). Madjitov argues on appeal that the
BIA incorrectly decided these questions because the evidence he submitted
demonstrated both a prima facie case for asylum, withholding of removal, and
CAT relief, and also that his evidence demonstrates material changed country
conditions. After review, we affirm of the BIA, and dismiss in part and deny in
part the petition for review.
I. Background
Madjitov, a native and citizen of Uzbekistan, entered the United States in
March 2006 on a temporary visa. After his visa expired, he filed an application for
asylum, withholding of removal, and CAT protection on January 3, 2007, alleging
2 Case: 19-13865 Date Filed: 09/14/2020 Page: 3 of 15
that he was persecuted on the basis of political opinion and membership in a
particular social group. He stated that he had been arrested, detained, and beaten
by the police in May 2005 for participating in a peace demonstration, and
threatened and attacked in June 2005 for believing in democracy, and he feared he
would be arrested and harmed by the police if he was returned to Uzbekistan.
In January 2007, the Department of Homeland Security (“DHS”) served
Madjitov with a notice to appear, which charged that he was removable for
overstaying his visa, pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).
Madjitov conceded removability as charged, indicated that he wished to apply for
asylum, withholding of removal, and CAT relief, and submitted a supplement to
his application for relief. The immigration judge (“IJ”) ultimately denied his
applications in May 2013 after finding he was not credible and that he failed to
provide sufficient corroborating evidence.1 In July and October of 2014, the BIA
dismissed Madjitov’s appeal and denied his motion for reconsideration. Madjitov
did not seek judicial review.
In January 2018, Madjitov, through counsel, filed a motion asking the BIA
to reopen proceedings sua sponte in order to allow him to adjust his status to that
of lawful permanent resident based on hardship to his family. Madjitov submitted
1 The original decision of the IJ was issued in 2011 but was missing a portion of the IJ’s reasoning. The IJ reissued a full decision upon remand from the BIA. 3 Case: 19-13865 Date Filed: 09/14/2020 Page: 4 of 15
documents to the agency during his proceedings indicating that he married his
wife, Madina Mamadjonova, in July 2012; she later became a U.S. citizen in April
2015; and they resided with their children in Connecticut. Madjitov also submitted
documents indicating that U.S. Citizenship and Immigration Services (“USCIS”)
had approved an I-130 petition for alien relative in 2013 filed by Madjitov’s wife
on his behalf. In October 2016, Madjitov filed an I-485 application to adjust his
status to that of legal permanent resident. He was detained on December 22, 2017
and moved to the Etowah County Detention Center in Alabama.
Soon after, in March 2018, Madjitov retained new counsel and submitted an
amended motion to reopen based on changed conditions in Uzbekistan, along with
a motion for a stay of removal. He argued that increased surveillance in
Uzbekistan and its practice of persecuting family members of suspected terrorists,
coupled with the public investigation into one of his brothers-in-law’s affiliation
with an ISIS affiliate, warranted reopening. In support of his amended motion,
Madjitov submitted a new asylum application based on religion, political opinion,
and membership in a particular social group; a December 2017 Department of
Justice press release about the arrest of his brother-in-law for lying about
knowledge of his brother who was a member of a group affiliated with ISIS; 2015
and 2017 reports by Amnesty International (“Amnesty reports”) documenting use
of surveillance and torture by the Uzbekistani government; and the U.S. State 4 Case: 19-13865 Date Filed: 09/14/2020 Page: 5 of 15
Department’s 2016 Human Rights Report for Uzbekistan (“Country Report”). The
Department of Justice press release indicated that, on the same day Madjitov was
detained by immigration authorities, federal authorities arrested his brother-in-law,
Sidikjon Mamadjonov, and charged him with unlawful procurement of
naturalization by lying about his sibling’s connection with an ISIS affiliate.
In May 2018, the BIA denied Madjitov’s January 2018 motion to reopen for
family hardships as untimely because he failed to establish any exception to the
filing deadline and, it concluded, becoming eligible for legal permanent resident
status was not an extraordinary reason to reopen his filing deadline. The BIA did
not address Madjitov’s March 2018 amended motion.
On May 30, 2018, Madjitov, through counsel, again moved the BIA to
reopen his proceedings based on changed country conditions in Uzbekistan, using
the same unaddressed claims and evidence from his amended motion to reopen in
March 2018.2
In September 2019, the BIA denied Madjitov’s May 2018 motion to
reopen. 3 The BIA concluded that Madjitov had not demonstrated materially
2 In June 2019, Madjitov also filed a pro se supplement to the motion, arguing that the Third Circuit had published relevant intervening precedent and that he feared persecution based on his Salafi Muslim faith, which he described as a “strict” form of Islam, and the Uzbekistani government incorrectly associated these religious beliefs with terrorism. 3 As an initial matter, the BIA stated that it would not treat Madjitov’s motion to reopen as number-barred, as it was “unclear what happened [to] the March 6, 2018, filing” submitted to the BIA as an amendment to his first motion to reopen. 5 Case: 19-13865 Date Filed: 09/14/2020 Page: 6 of 15
changed country conditions or circumstances since the time of his 2013 merits
hearing. First, it stated, “[t]he background evidence indicates that for the past 15
years, the Uzbekistan government has been ‘clamping down’ on suspected
members and sympathizers of Islamic groups, and targeting entire families.” As
such, it reasoned, Madjitov had not shown changed country conditions since 2013
“with respect to Uzbekistan government’s treatment of Islamic terrorists or other
religious extremists.” The BIA concluded that Uzbekistan’s increased online
surveillance of citizens at home and abroad was not a changed country condition or
circumstance “material to his claim.” It reasoned, “[g]iven changes in technology
and surveillance, as well as world-wide concerns with terrorist attacks, such efforts
at law enforcement are not the type of change contemplated by the statute or
regulations, as it [sic] does not signify an increase in government-based
persecution on account of a protected ground.”
Third, it stated that Madjitov had not shown he was prima facie eligible for
relief because he had not submitted any evidence that he would be personally
targeted if returned to Uzbekistan, as he had not submitted any evidence that his
relatives or his wife’s relatives had been harmed as a result of the activities of his
wife’s deceased brother.
Finally, the BIA declined to grant his motion to reopen based on his
supplemental filing because he did not submit a new asylum application based on 6 Case: 19-13865 Date Filed: 09/14/2020 Page: 7 of 15
the claim, and because his translated evidence was not certified. It also concluded
that his motion did not demonstrate an exceptional situation that would warrant the
exercise of its discretion to reopen proceedings under its sua sponte authority.4
This petition for review followed.
II. Standard of Review
We review the BIA’s denial of a motion to reopen removal proceedings for
abuse of discretion, which is limited to determining whether the BIA exercised its
discretion in an arbitrary or capricious manner. Zhang v. U.S. Att’y Gen., 572 F.3d
1316, 1319 (11th Cir. 2009). Where a petitioner challenges the BIA’s
nondiscretionary grounds for denying a motion to reopen, we remand only if the
BIA has not given “reasoned consideration” of a question or made “adequate
findings.” Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 874 (11th Cir. 2018).
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.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 803 (11th Cir. 2016)
(quotation marks omitted). The immigration judge’s factual findings are
considered “conclusive unless a reasonable factfinder would be compelled to
4 In November 2019, Madjitov filed a 28 U.S.C. § 2241 petition for habeas relief in the U.S. District Court for the District of Connecticut, arguing that he had a constitutional due process right to complete a “provisional unlawful presence waiver of inadmissibility,” pursuant to 8 C.F.R. § 212.7(e), which the district court dismissed for lack of jurisdiction. 7 Case: 19-13865 Date Filed: 09/14/2020 Page: 8 of 15
conclude to the contrary.” Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th
Cir. 2003).
We determine our own subject matter jurisdiction de novo. Guzman-Munoz
v. U.S. Att’y Gen., 733 F.3d 1311, 1313 (11th Cir. 2013).
III. Discussion
A. Madjitov Did Not Demonstrate a Material Change in Country Conditions
Generally, an alien must file a motion to reopen his removal proceedings
within 90 days of the date of entry of a final administrative order of removal,
subject to certain exceptions. Zhang, 572 F.3d at 1319; INA § 240(c)(7)(C)(1),
8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). As relevant here, the INA
provides for an exception to the time limitation if the motion to reopen is “based on
changed circumstances 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.” INA
§ 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii); Jiang v. U.S. Att’y Gen., 568 F.3d
1252, 1256 (11th Cir. 2009). That motion “shall state the new facts that will be
proven at a hearing to be held if the motion is granted, and shall be supported by
affidavits or other evidentiary material.” INA § 240(c)(7)(B), 8 U.S.C.
§ 1229a(c)(7)(B) (emphasis added). An alien seeking to show that evidence is
material bears a heavy burden, and must present evidence demonstrating that, if 8 Case: 19-13865 Date Filed: 09/14/2020 Page: 9 of 15
proceedings were reopened, the new evidence would likely change the result.
Jiang, 568 F.3d at 1256–57. The moving party bears a heavy burden because
motions to reopen are disfavored, particularly in removal proceedings, where
delays works to the advantage of the deportable noncitizen. Zhang, 572 F.3d at
1319; see also Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003)
(stating that “in this particular area, the BIA’s discretion is quite broad”). A
change in personal circumstances does not authorize the untimely filing of a
motion to reopen. Id. at 1258.
Here, we affirm the BIA’s determination that Madjitov did not prove a
material change in country conditions.5 The changed circumstances exception
applies only “when (1) an alien files a motion to reopen that seeks asylum,
withholding of removal, or relief under the Convention Against Torture; (2) the
motion is predicated on changed country conditions; and (3) the changed
conditions are material and could not have been discovered at the time of the
removal.” Jiang, 568 F.3d at 1256. We address the supporting documents filed by
Madjitov in turn to explain how they do not compel a reversal.
1. Madjitov’s Family and Changed Personal Circumstance
5 We decline to address Madjitov’s argument that he established a prima facie case for any form of relief because we can resolve the appeal on an alternative ground upon which the BIA relied. See Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1290–91 (11th Cir. 2014); Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). 9 Case: 19-13865 Date Filed: 09/14/2020 Page: 10 of 15
A change in personal circumstance alone cannot equate a changed country
circumstance. Zhang, 572 F.3d at 1319. Madjitov admits as much in his briefing
by arguing that his changed personal circumstances are relevant because of
changed country conditions. Thus, we do not find the documents Madjitov
submitted relating to his family history sufficient to compel the BIA to reopen his
case. Rather, we must determine what the documents submitted regarding the
country of Uzbekistan show.
2. The 2017 and 2015 Amnesty Reports
Madjitov argues that the two Amnesty Reports he submitted documented an
increase in persecution and torture of family members of suspected terrorists as
well as an increased ability of the government to carry out its repressive practices
due to an enhanced surveillance program. Upon review, we cannot conclude that
the BIA clearly erred in finding these articles did not show a material change in
country conditions. It is true that the 2015 report stated that “Uzbekistani
authorities routinely target relatives of detainees or prisoners charged with or
convicted of anti-state offences” and families of those suspected of membership in
banned Islamic movements or groups, in order to pressure them to disclose the
suspect’s whereabouts or pressure them to surrender themselves. But a fair reading
of the report indicates that this practice has been going on as early as 1999, when
the president endorsed punishment of relatives of “Islamist fundamentalists” after a 10 Case: 19-13865 Date Filed: 09/14/2020 Page: 11 of 15
bombing. In fact, the report contains numerous indications that the torture of
suspected terrorists and their family members is not a changed country condition,
such as:
(1) describing itself as providing “updates on key cases and human rights
concerns since 1992,”
(2) documenting certain torture techniques currently being used which have
continued “since 1992,”
(3) containing accounts of unjustified detention and torture of terrorist
suspects and their family members from 1999, 2007, 2008, and 2011
(4) attributing the increase of torture on suspected terrorists and their family
members to the international “war on terrorism” that was started in 2001
(5) reporting that the torture of terrorism suspects had been ongoing “[o]ver
the last 15 years” as the government “responded to a number of violent
events by clamping down on suspected members and sympathizers of
banned secular and Islamist opposition parties and Islamic movements,”
and
(6) stating that “[n]ational security has been at the top of the Uzbekistani
government’s agenda for the past two decades.”
In short, the report indicates a continuation of the bad acts Madjitov fears rather
than a change in country conditions. The only “change” documented in the report 11 Case: 19-13865 Date Filed: 09/14/2020 Page: 12 of 15
is the passage of a new law on prevention of crimes which became effective in
August of 2014 that mandated lists of offenders and individuals believed to be at
risk of committing crimes be kept by local neighborhood committees and security
forces, including “members or suspected members of banned Islamist groups and
Islamic movements and their families.” But keeping a list of suspects is not the
same as implementing a new policy of torture, and so the report does not compel a
finding that the BIA erred.
As to the 2017 Amnesty report, we have doubts whether it demonstrates a
change in country conditions, since the new surveillance technology it chronicles
were merely tactics which “help[] reinforce the already repressive environment.”
But assuming arguendo that this new technology is a “changed country condition,”
it is not a material change. The article describes the new ability of the Uzbekistani
government to hack a device with malware and access all the device’s content,
intercept communications, track the device’s location, and remotely activate the
device’s microphone and camera. We do not see how this new approach is
material to Madjitov, who claims that he will be targeted because of a public news
release about his brother-in-law rather than any private communications he has
had. Further, the report does not conclusively demonstrate that the Uzbekistani
government has misused this newfound ability, rather that people voluntarily
ceased communications in fear that it would be. 12 Case: 19-13865 Date Filed: 09/14/2020 Page: 13 of 15
3. The 2016 Department of Justice Country Report
The 2016 country report does not paint Uzbekistan in a favorable light.
According to the report, law enforcement officers routinely use torture, including
threats against family members, to obtain confessions or incriminating information
from detainees. And in 2016, authorities reportedly increased the severity of
punishments for individuals suspected of “Islamist extremism.” Specific credible
cases of torture or mistreatment were documented against six men accused of
participating in banned religious organizations and three human rights activists or
whistleblowers, and there were credible cases of harassment of family members of
five human rights activists. However, nothing in the report indicates that the
arrest, threats, or torture against family members of suspected terrorists is a new
development. Indeed, some of these cases cited in the report began in 1999, 2003,
and 2010. Notably, a 2010 Country Report submitted earlier in the proceedings
also reported that family members of suspected terrorists were targeted for
mistreatment by security forces in Uzbekistan. Thus, the 2016 country report does
not signify the BIA clearly erred in finding no material changed country condition
that would justify reopening a removal proceeding.
B. We Lack Jurisdiction to Consider Madjitov’s Suspension Clause Argument
We lack jurisdiction to review the BIA’s decision unless the petitioner has
exhausted all administrative remedies available to him. Indrawati v. U.S. Att’y 13 Case: 19-13865 Date Filed: 09/14/2020 Page: 14 of 15
Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). A petitioner fails to exhaust all
administrative remedies regarding a specific claim when he neglects to raise that
claim before the BIA. Id. This requirement is not “stringent.” Id. It merely
requires the petitioner to have argued previously the “core issue” now on appeal
before the BIA, as well as to have set out any discrete arguments supporting the
claim. Jeune, 810 F.3d at 800 (quotation marks omitted). The exhaustion
requirement is jurisdictional and precludes review of a claim that was not
presented to the BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247,
1249–50 (11th Cir. 2006). Where a procedural due process claim properly falls
within the immigration courts’ power to review and provide a remedy, the claim
must be exhausted before we can consider it. Id. at 1251.
Madjitov argues that he brought a habeas claim in the U.S. District Court for
the District of Connecticut seeking an injunction to allow him to remain in the
United States in order to apply for a provisional unlawful presence waiver of
inadmissibility, pursuant to 8 C.F.R. § 212.7(e). He argues that his “habeas” claim
must be heard in some forum in order to avoid violating the Suspension Clause,
and that this Court should grant his petition for review and direct the BIA to stay
his removal until he has a chance to complete “the process” for a provisional
unlawful presence waiver of inadmissibility. But we lack jurisdiction to review
whether Madjitov is entitled to a provisional unlawful presence waiver, as he did 14 Case: 19-13865 Date Filed: 09/14/2020 Page: 15 of 15
not raise it before the BIA in his motion to reopen. See Amaya–Artunduaga, 463
F.3d at 1251; see also Faddoul, 37 F.3d at 190. Although Madjitov appears to
challenge the INA’s requirement that he raise his claims for relief before the
agency, a previous panel of this Court ruled that the motion-to-reopen procedure in
immigration proceedings does not violate the Suspension Clause, and its decision
has not been overruled. See Alexandre, 452 F.3d at 1206; Archer, 531 F.3d at
1352. Therefore, we are bound by precedent to hold we have no jurisdiction over
this claim and must dismiss this part of Madjitov’s petition.
PETITION DISMISSED IN PART AND DENIED IN PART.