Madina Rahmatova v. Merrick B. Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 31, 2021
• Docket: 20-3902
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0410n.06

No. 20-3902

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED MADINA TAIROVNA RAHMATOVA, ) Aug 31, 2021 ) DEBORAH S. HUNT, Clerk Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION MERRICK B. GARLAND, Attorney General, ) APPEALS ) Respondent. ) )

BEFORE: BOGGS, CLAY, and WHITE, Circuit Judges.

HELENE N. WHITE, Circuit Judge. Petitioner Madina Tairovna Rahmatova, a native

and citizen of Uzbekistan, seeks review of the Board of Immigration Appeals’ (BIA) decision

denying her motion to reopen her removal proceedings. Because the BIA rationally denied

Rahmatova’s motion to reopen based on changed country conditions, we DENY the petition for

review.

I.

Rahmatova was admitted to the United States as a nonimmigrant visitor on or about

September 26, 2004. Rahmatova entered with her then-husband Shehroz Tokhirov, who filed

applications for asylum, withholding of removal, and protection under the Convention Against

Torture with the Department of Homeland Security (DHS) in May 2006, listing Rahmatova as a

derivative beneficiary. DHS referred the applications to an immigration judge (IJ) in November

2008, and initiated removal proceedings against Tokhirov and Rahmatova, charging them with No. 20-3902, Rahmatova v. Garland

removability for overstaying their visitor visas. On October 22, 2010, the IJ denied the applications

for relief, and the BIA dismissed Tokhirov’s appeal on October 11, 2012.

On April 6, 2020—over seven years after the BIA dismissed the appeal of the IJ’s decision

on the couple’s initial applications—Rahmatova filed a motion to sever and reopen her

proceedings, alleging changed country conditions in Uzbekistan and seeking an opportunity to

apply for asylum, withholding of removal, and protection under the Convention Against Torture

based on her conversion from Islam to Christianity and her 2016 divorce. In support of her

argument that conditions in Uzbekistan had materially changed since her prior hearing, Rahmatova

stated:

Uzbekistan has been changing into a Muslim country of a lot of individuals with extremist views. Attached hereto and in support hereof is a U.S. Department of State 2017 Report on International Religious Freedom and Amnesty International Report for Uzbekistan for 2017/2018, a Time Magazine article regarding Extremist Islam in Uzbekistan . . . , and a paper of Minnesota Advocates for Human Rights on Domestic Violence in Uzbekistan stating that the society condemns divorced women and they still suffer after their divorce.

AR 45. Rahmatova also attached several other documents to her motion to support her assertions

that she would be persecuted in Uzbekistan as a divorced Christian woman, including evidence

that she had been threatened and harassed due to her religion.

DHS opposed Rahmatova’s motion, arguing that she asserted a change in personal

circumstances rather than a material change in country conditions. DHS further argued that the

evidence Rahmatova submitted failed to establish that there has been any change in country

conditions relating to the new personal circumstances. In support, DHS appended the 2012

Department of State Religious Freedom report for Uzbekistan, arguing that the 2012 report

“reveal[ed] identical concerns regarding the treatment of Christians,” and, “[l]ike the 2017 report,

the 2012 report notes raids on Christian services, confiscation of Christian books, blocked access

to Christian websites, general discrimination of Christians, and mistreatment of converts.” AR 8. -2- No. 20-3902, Rahmatova v. Garland

The BIA denied Rahmatova’s motion to reopen in a three-page decision, stating in relevant

part:

The respondent’s motion to reopen is untimely. The respondent contends that an exception to the time limitation applies based on changed country conditions and personal circumstances. She alleges that she has become the target of insults, harassment, and humiliation because of her recent divorce by the people in Uzbekistan because it is a Muslim country and she comes from a strictly conservative family. She also fears persecution due to her conversion from Islam to Christianity. In support of these claims, the respondent has submitted her declaration, her new asylum application, copies of a psychological evaluation, letters from the pastor and fellow church member of the All Nations Church in Brooklyn, NY, copies of two summons dated November 28, 2005, and November 15, 2018, a letter from the respondent’s mother, copies of purported threatening screen shots from the respondent’s phone, photos of the respondent at church in the United States, the 2017 Department of State Human Rights report for Uzbekistan, the 2017/18 Amnesty International report for Uzbekistan, and a Time Magazine article dated November 1, 2017, entitled “Uzbekistan’s History with Islam Might Explain a Lot About the New York Attack Suspect,” and a December 2000 report by the Minnesota Advocates for Human Rights on domestic violence in Uzbekistan. The evidence submitted by the respondent is insufficient to show changes in conditions or circumstances in Uzbekistan material to the respondent’s asylum claims. While the respondent alleges that since her final hearing she has divorced her husband and converted to Christianity, we agree with the DHS that these are changes in personal circumstances that do not constitute a change “arising in” Uzbekistan such that her motion may be found to fall within this exception to the motion time limits. See Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006). Moreover, the respondent has not shown that conditions for divorcees or Muslim converts to Christianity have changed since her 2010 hearing below. Additionally, the respondent has not established the Uzbek government is unable or unwilling to protect her from her family, or other private actors. See Matter of A-B-, 27 I&N Dec. at 33 (A.G. 2018) (holding that “[N]o country provides its citizens with complete security from private criminal activity, and perfect protection is not required”). Consequently, the respondent has not demonstrated a material change in circumstances or conditions in Uzbekistan. Based on the above, we conclude that the respondent did not show that country conditions or circumstances in Uzbekistan changed materially, such that her motion falls within an exception to the motion to reopen time limitations.

AR 4-5 (some citations omitted).

This timely petition for review followed.

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II.

“We review the BIA’s denial of a motion to reopen immigration proceedings for abuse of

discretion.” Trujillo Diaz v. Sessions, 880 F.3d 244, 248 (6th Cir. 2018) (citing Alizoti v. Gonzales,

477 F.3d 448, 451 (6th Cir. 2007)). “Because the BIA has such broad discretion, a party seeking

reopening or reconsideration bears a heavy burden.” Preçetaj v. Sessions, 907 F.3d 453, 457 (6th

Cir. 2018) (internal quotation marks omitted) (quoting Alizoti, 477 F.3d at 451). An abuse of

discretion occurs where “the BIA’s denial ‘was made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible basis such as invidious

discrimination against a particular race or group.’” Trujillo Diaz, 880 F.3d at 248 (quoting

Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)).

Motions to reopen are subject to temporal and numerical limitations and generally must be

filed within ninety days of the final administrative order of removal. See 8 U.S.C.

§ 1229a(c)(7)(C)(i). There is an exception to the ninety-day filing deadline for reopening if the

motion is for the purpose of applying for asylum “and 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.” Id. § 1229a(c)(7)(C)(ii). Rahmatova’s motion to reopen, filed more than

seven years after the date of entry of the BIA’s final order of removal, is therefore untimely unless

it meets the “changed country conditions” exception.

Rahmatova argues that the BIA misconstrued her motion as relying solely on changes in

her personal circumstances (her divorce and conversion to Christianity) rather than changes in

circumstances arising in Uzbekistan that would provide an exception to the time limit for filing a

motion to reopen. Although Rahmatova “agrees and readily acknowledges that her divorce and

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conversion were changes in personal circumstances,” Pet’r Br. at 11, and does not dispute that

these changes in personal circumstances are insufficient to qualify for an exception to the ninety-

day time limitation, see Haddad, 437 F.3d at 517, she argues that the BIA abused its discretion

because it failed to sufficiently address her contention that there had been a material increase in

religious extremism in Uzbekistan.

We disagree. Although the BIA found that Rahmatova alleged changes in personal

circumstance that do not constitute changes “arising in” Uzbekistan, the BIA also concluded that

Rahmatova “has not shown that conditions for divorcees or Muslim converts to Christianity have

changed since her 2010 hearing below.” AR 4. The BIA therefore recognized Rahmatova’s

argument but rejected it based on inadequate support. As the government points out, Rahmatova’s

argument about changed country conditions was limited to two conclusory sentences, and she

never explained how the evidence she attached establishes the requisite changed country

conditions. Further, the government persuasively explained why Rahmatova’s evidence was either

irrelevant to the analysis or did not support her argument, and Rahmatova has never attempted to

rebut the government’s showing.

Although we have previously vacated BIA decisions where it failed to adequately explain

its rationale, those cases involved more detailed presentations by the petitioner and were limited

to circumstances in which the BIA failed to address evidence and arguments presented by the

petitioner. See, e.g., Preçetaj, 907 F.3d at 457 (remanding where the BIA did not address the

“evidence and arguments” regarding changed country conditions); Lindor v. Holder, 317 F. App’x

492, 497-99 (6th Cir. 2009) (same). Although it is not within our purview to make findings of fact

or reweigh the evidence submitted by both parties, the burden to establish a material change in

country conditions rests with the party seeking reopening or reconsideration. Preçetaj, 907 F.3d

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at 457. Given the conclusory nature of Rahmatova’s argument and the government’s persuasive

response that Rahmatova did not establish a material change in country conditions, the BIA’s

explanation, although disappointingly brief, adequately addressed her evidence and arguments.

Next, Rahmatova argues that the BIA erred in finding that she did not establish that the

Uzbek government is unable or unwilling to protect her. The paragraph at issue states:

Additionally, the respondent has not established the Uzbek government is unable or unwilling to protect her from her family, or other private actors. See Matter of A-B-, 27 I&N Dec. at 343 (A.G. 2018) (holding that “[N]o country provided its citizens with complete security from private criminal activity, and perfect protection is not required”). Consequently, the respondent has not demonstrated a material change in circumstances or conditions in Uzbekistan.

AR 4.

Rahmatova reads this paragraph as erroneously requiring her to establish her eligibility for

asylum rather than requiring her to show mere prima facie eligibility. See Alizoti, 477 F.3d at 451-

52 (explaining that to reopen proceedings the petitioner must establish prima facie statutory

eligibility, i.e., “a reasonable likelihood that the statutory requirements for relief have been

satisfied” (internal quotation marks and citations omitted)). The government responds that

Rahmatova misunderstands the BIA’s decision:

[T]he Board did not state that it was denying reopening because [Rahmatova] failed to establish her prima facie eligibility for the underlying relief she would seek in the reopened proceeding. Rather, the Board indicated that its unable-or-unwilling determination was an “additional[]” reason it included in its analysis of whether Ms. Rahmatova’s late-filed motion was excepted from the ninety-day filing deadline, and that in view of all of those reasons, she “consequently” “ha[d] not demonstrated a material change in circumstances or conditions in Uzbekistan.”

Resp’t Br. at 19-20 (third and fourth alterations in original) (quoting AR 4).

Admittedly, the BIA’s reasoning is unclear. The first sentence appears to find, as

Rahmatova argues, that she did not establish one of the requirements for asylum. This

interpretation is bolstered by the citation to the now-vacated Matter of A-B-, 27 I & N Dec. 316

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(A.G. 2018), vacated by Matter of A-B-, 28 I & N 307 (A.G. 2021), which interpreted the

substantive requirements for asylum and did not opine on the standard for a motion to reopen. On

the other hand, as the government argues, the next sentence appears to use this failure by

Rahmatova to support the BIA’s conclusion that Rahmatova had not established changed country

conditions, and does not suggest that the BIA was denying the motion on grounds other than

untimeliness. Indeed, the BIA begins and ends its analysis by stating that Rahmatova’s motion is

being denied as untimely. Although the BIA’s decision was not a model of clarity, it does not

appear to have applied an incorrect standard to Rahmatova’s motion.

We DENY the petition for review.

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