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 2 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] 3 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 4 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 5 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
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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 2 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] 3 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 4 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 5 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 6 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