17-2792 Starchikova v. Barr BIA
A095 476 785/786/788
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 TO 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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 12th day of July, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 DENNIS JACOBS, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 YELENA STARCHIKOVA, AZAD 14 CHIGATEAV, AZIZA CHIGATAYEVA, 15 Petitioners, 16 17 v. 17-2792 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Alexander J. Segal, New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Anthony P. 28 Nicastro, Assistant Director; 29 Ilana J. Snyder, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioners Yelena Starchikova, Azad Chigateav, natives 6 of the Soviet Union and citizens of Uzbekistan, and Aziza 7 Chigatayeva, a native and citizen of Uzbekistan, seek review 8 of an August 25, 2017 decision of the BIA denying their motion 9 to reopen their removal proceedings. In re Yelena 10 Starchikova, Azad Chigateav, Aziza Chigatayeva, Nos. A 095 11 476 785/786/788 (B.I.A. Aug. 25, 2017). We assume the 12 parties’ familiarity with the underlying facts and procedural 13 history in this case. 14 We review the BIA’s denial of a motion to reopen for 15 abuse of discretion and its country conditions 16 determination for substantial evidence. See Jian Hui Shao 17 v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). A motion 18 to reopen must be filed no later than 90 days after the 19 date on which the final administrative decision was 20 rendered. 8 U.S.C. § 1229a(c)(7)(C)(i). It is undisputed 21 that the petitioners’ 2017 motion to reopen was untimely 22 because it was filed more than 12 years after their removal
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1 order. See id. The time limitation for filing a motion to 2 reopen does not apply, however, if reopening is sought to 3 apply for asylum “based on changed country conditions 4 arising in the country of nationality or the country to 5 which removal has been ordered, if such evidence is 6 material and was not available and would not have been 7 discovered or presented at the previous proceedings.” Id. 8 § 1229a(c)(7)(C)(ii). 9 The BIA did not abuse its discretion in declining 10 reopening. The record reflects that the BIA acknowledged the 11 allegations of deteriorating conditions in Uzbekistan 12 following President Islam Karimov’s death in 2016, but 13 reasonably concluded that those allegations did not meet the 14 high burden for reopening because the petitioners did not 15 demonstrate that the unique conditions faced by ethnic 16 Russians or Orthodox Christians are significantly different 17 than at the time of their asylum hearing before the IJ in 18 2003. Id. (requiring change in country conditions material 19 to asylum claim); In re S-Y-G-, 24 I. & N. Dec. 247, 253 20 (B.I.A. 2007) (“In determining whether evidence accompanying 21 a motion to reopen demonstrates a material change in country 22 conditions that would justify reopening, [the BIA] compare[s]
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1 the evidence of country conditions submitted with the motion 2 to those that existed at the time of the merits hearing 3 below.”). 4 The record supports the BIA’s conclusion that conditions 5 for ethnic Russians and Orthodox Christians have not worsened 6 since 2003, as the evidence reflects that they simply have 7 not improved over time. See In re S-Y-G-, 24 I. & N. Dec. 8 at 257 (“Change that is incremental or incidental does not 9 meet the regulatory requirements for late motions of this 10 type.”); see also Certified Administrative Record (“CAR”) at 11 104 (Human Rights Watch report reflecting long history of 12 human rights abuses in Uzbekistan). The petitioners allege 13 that “contempt and intolerance for ethnic Russians” have 14 persisted for years in Uzbekistan and cite societal 15 intolerance for interfaith marriages, but they do not allege 16 that President Islam Karimov’s death has resulted in 17 increased intolerance. They assert that the change in 18 leadership has precipitated degraded conditions throughout 19 Uzbekistan, but they have not identified changes that 20 particularly affect ethnic Russians or Orthodox Christians. 21 The evidence they proffered, including a State Department 22 report and an affidavit from an expert witness, showed neither
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1 a material worsening in conditions afflicting ethnic Russians 2 or Orthodox Christians since Starchikova originally applied 3 for asylum, nor treatment of these groups rising to the level 4 of persecution. CAR at 104, 124-27, 160, 183. 5 Moreover, the BIA did not abuse its discretion in finding 6 no changed conditions with respect to the petitioners’ 7 imputed political opinion claim. Petitioners argue that the 8 Uzbek government “treat[s] every Uzbek who has been abroad as 9 a potential terrorist,” but their evidence showed only that 10 some men who stayed outside the country for several years 11 were placed on lists for periodic searches and young men 12 living abroad were thought to be Islamic extremists. And 13 they did not produce any evidence that Chigateav would be 14 perceived as such an individual or that individuals returning 15 from the United States (as opposed to those returning from 16 Egypt or Turkey) would be targeted. Furthermore, any asylum 17 claim based on the petitioners’ status as asylum seekers 18 implicates their personal circumstances, not a change in 19 conditions in Uzbekistan, and does not trigger an exception 20 to the time for reopening. See Wei Guang Wang v. BIA, 437 21 F.3d 270, 273-74 (2d Cir. 2006) (differentiating between 22 changed country conditions, which warrant reopening of asylum
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1 proceedings, and changed personal circumstances, which do 2 not). Moreover, although the record reflects that Uzbek 3 citizens who have resided outside of Uzbekistan may be 4 interrogated and monitored, the record does not reflect harm 5 rising to the level of persecution on return to Uzbekistan. 6 See Y.C. v. Holder, 741 F.3d 324, 338 (2d Cir. 2013) 7 (reasoning that “other governments’ restraints on personal 8 autonomy strike us as oppressive” but may not support an 9 asylum claim) (internal quotation marks omitted); In re S-Y- 10 G-, 24 I. & N. Dec. at 258 (holding that proffered evidence 11 must be material and must support prima facie case for 12 asylum). 13 Finally, the BIA reasonably concluded that the 14 petitioners did not establish that Chigateav would face 15 persecution for allowing his daughter to be baptized and 16 raised as a Christian. Although the 2003 country conditions 17 evidence shows that those who sought to convert Uzbek Muslims 18 to Christianity may have been subjected to societal 19 harassment or government monitoring, the new evidence does 20 not reflect such treatment, much less a material worsening of 21 conditions. The petitioners point to their expert witness’s 22 statement. But the expert stated that Chigateav would face
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1 “cultural ostracism” without identifying harm rising to the 2 level of persecution or a change in conditions as needed to 3 excuse the time limit. See Ivanishvili v. U.S. Dep’t of 4 Justice, 433 F.3d 332, 340-41 (2d Cir. 2006); Jian Hui Shao, 5 546 F.3d at 168 (reasoning that, for motions to reopen, aliens 6 “carry the heavy burden of demonstrating that the proffered 7 new evidence would likely alter the result” (internal 8 quotation marks omitted)). 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, any stay of removal 11 that the Court previously granted in this petition is VACATED, 12 and any pending motion for a stay of removal in this petition 13 is DISMISSED as moot. Any pending request for oral argument 14 in this petition is DENIED in accordance with Federal Rule of 15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 16 34.1(b).
17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court