Boules v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-11068 OCT 12, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________

Agency No. A072-436-707

YOUSSEF FAHMY BOULES,
a.k.a. Youssef Fahmy Salib Boules,
NOURHAIM ADIB MENKARIOS,
a.k.a. Naraine Aiden Nacarious,
a.k.a. Nourham Adib Boutros Mankarious,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
________________________

(October 12, 2010)
Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Youssef Fahmy Boules and his wife Nourhaim Adib Menkarios

(collectively “the petitioners”), natives and citizens of Egypt, petition for review

of the Board of Immigration Appeals’ (“BIA”) order denying their second motion

to reopen their removal proceedings, pursuant to 8 C.F.R. § 1003.2(a). After

review, we deny the petition for review.1

I. BACKGROUND

A. 1991 Asylum Application

In August 1991, Boules and his wife Menkarios entered the United States

on non-immigrant visas with authorization to remain until February 1, 1992. In

November 1991, Boules filed an application for asylum, listing his wife as a

derivative beneficiary. Boules claimed that he had suffered past persecution and

feared future persecution by Islamic fundamentalists in Egypt because he is a

Coptic Christian.

1
We review the denial of a motion to reopen for abuse of discretion. Abdi v. U.S. Att’y
Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). Review is “limited to determining whether there
has been an exercise of administrative discretion and whether the matter of exercise has been
arbitrary or capricious.” Id. (quotation marks omitted).

2
 According to Boules’s 1991 asylum application: (1) in 1989, he was

threatened by the “heads of Gamaat Islamiah” after he opened a law practice in

Egypt representing Christians who were tortured and persecuted; (2) in June 1990,

three bearded men in Islamic dress came to his law office, threw him to the floor,

damaged his office and destroyed his client files; and (3) in May 1991, Muslim

extremists disturbed his wedding at a Christian church and, days later, broke the

windows of the car he and his wife were riding in because there was a cross

hanging from the mirror. Boules reported these incidents to Egyptian police, but

nothing was done. Because of these attacks, Boules felt he would be killed if he

remained in Egypt. Boules went to the U.S. embassy and obtained a visa to visit

the United States.

B. 2005 Removal Proceedings & 2008 Removal Order

In November 2005, the Department of Homeland Security (“DHS”) served

Boules and his wife Menkarios with Notices to Appear (“NTA”), charging them

with removability under Immigration and Nationality Act (“INA”) § 237(a)(1)(B),

8 U.S.C. § 1227(a)(1)(B), for overstaying their 1991-92 visitor visas.2 At an initial

hearing, Boules and Menkarios admitted the allegations in the NTAs and

2
In October 2005, an asylum officer interviewed Boules and referred Boules’s asylum
application to an Immigration Judge (“IJ”) for adjudication in removal proceedings. See 8 C.F.R.
§ 208.14(c).

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conceded removability. In July 2006 and March 2007, respectively, Boules and

Menkarios filed motions for cancellation of removal asserting that their removal

would result in exceptional and extremely unusual hardship to their two children

born in the United States.

On February 6, 2008, the IJ held a hearing at which Boules, Menkarios and

their son Mina testified.3 The IJ then denied Boules’s claims for asylum,

withholding of removal and relief under the Convention Against Torture (“CAT”),

denied Boules’s and Menkarios’s requests for cancellation of removal and granted

Boules’s request for voluntary departure on or before March 6, 2008. Among

other things, the IJ determined that Boules had not shown that he suffered past

persecution or a well-founded fear of future persecution in Egypt based on his

religion as a Coptic Christian. The IJ found that Boules had “embellish[ed]”

Egypt’s country conditions and the treatment of Coptic Christians in Egypt. The

IJ noted that the State Department Profile and Country Report, the Library of

Congress Report and the International Religious Freedom Report contradicted

Boules’s and Menkarios’s claims of forced conversion, kidnapping and rape of

Coptic Christians and showed that the Egyptian government vigorously prosecuted

3
Mina Boules was born in New Jersey on January 28, 1992. Marina Boules was born in
Georgia on December 3, 1995. Thus, Mina was 16 years old and Marina was 12 years old at the
time of the removal hearing.

4
Islamic extremists when they tried to mistreat Coptic Christians. The IJ found that

these reports provided a more accurate description of Egypt’s conditions given

that Boules and Menkarios had not been in Egypt for 17 years.

On December 4, 2008, the BIA adopted and affirmed the IJ’s decision. The

BIA explained that the IJ had not discredited Boules’s and Menkarios’s testimony,

but rather had concluded that this testimony did not establish statutory eligibility

for asylum and withholding of removal or the requisite hardship for cancellation of

removal. The BIA gave the petitioners thirty days to voluntarily depart the United

States. The petitioners did not petition for review of this December 4, 2008 final

order of removal.

B. First Motion to Reopen in 2009

On January 6, 2009, petitioners Boules and Menkarios filed a “Motion to

Reconsider” the BIA’s December 4, 2008 order. The petitioners argued that

because their children were older and largely assimilated into American culture,

they had satisfied the hardship requirement for cancellation of removal. On June

16, 2009, the BIA denied the motion to reconsider as untimely, and construed the

motion as a timely-filed motion to reopen. The BIA denied the motion to reopen

because (1) most of the documents attached to the motion (primarily the children’s

school and church records) predated the IJ’s decision and the petitioners had not

5
shown why the evidence was not previously available; and (2) the remaining

documents did not satisfy the hardship requirement. The petitioners did not file a

petition for review of this June 16, 2009 BIA order in this Court.

C. Second Motion to Reopen in 2009

On July 28, 2009, petitioners Boules and Menkarios filed a second motion

to reopen. The petitioners argued that they were excused from the time and

numeric bars because they had shown changed country conditions in Egypt

regarding the government’s unwillingness to protect Coptic Christians. The

second motion to reopen alleged new and previously unavailable evidence (1) that

in January 2009 an Islamic group had attacked Boules’s law office in Cairo and

left a written death threat for Boules and his family and (2) of the extreme and

unusual hardship their U.S.-born children faced if their parents were returned to

Egypt.

The petitioners attached, inter alia: (1) a copy of an undated letter from an

unnamed Islamic group threatening Boules and his family with bodily harm and

death if they returned to Egypt; (2) a copy of an Egyptian police report indicating

that on January 27, 2009, Boules’s law office in Egypt was vandalized by Islamic

extremists who had left Boules the threatening letter; (3) an article from the U.S.

Copts Association website reporting the April 2009 destruction of the office of a

6
doctor who was an Egyptian union president for human rights; (4) an October

2005 affidavit of Nabil Fahmy Boules, Boules’s brother, stating his belief that his

brother would be killed if he returned to Egypt because of the incidents that

occurred there in 1990 and 1991; (5) an undated asylum approval letter issued to

Nabil Boules; (6) a May 2009 Department of State report stating that the Egyptian

“government’s respect for freedoms of the press, association and religion declined

in 2008”; (7) 2009 media reports documenting decades of sporadic flare-ups of

violence by Muslims against Coptic Christians in Egypt; (8) an October 2005

article from the U.S. Copts Association website about a protest by Muslims

outside a Coptic Church in Alexandria, Egypt that resulted in a riot; (9) a July

2008 letter from Joel Gordon, Professor of Middle Eastern studies at the

University of Arkansas, discussing general conditions in Egypt and between

Egyptian Muslims and Copts and expressing his opinion that relocating the

petitioners’ children to Egypt would constitute a hardship;4 and (10) March 2007

4
Among other things, Professor Gordon noted that: (1) Alexandria, where the petitioners
would reside, has been “a place of recent tensions,” but did not elaborate on this point; (2) “[f]or
a variety of reasons,” Egyptian authorities’ response to harassment of Coptic Christians is often
negligible; (3) although the threats the petitioners’ children fear, such as kidnapping and forced
conversion, are real, they “are not, contrary to their understanding, daily threats to the general
Coptic public”, but rather “flashpoints, the kinds of potentially violent encounters that lurk at the
edges of extremism at periods of heightened tensions, and in places in which lawless elements
have gained a degree of autonomy in delivering and carrying out threats”; and (4) given the
recent attack on Boules’s law office, the Boules family may be “caught amidst such troubles,”
and the children may face “harassment, intimidation, perhaps violence” in Egypt.

7
psychological evaluations of the petitioners’ children concluding that they would

suffer emotional or psychological trauma if they are either separated from their

parents or required to move to Egypt with their parents.

On February 4, 2010, the BIA denied the petitioners’ second motion to

reopen their asylum proceedings as time- and numerically-barred. The BIA found

that the petitioners had not shown changed country conditions that would excuse

them from the time and number limitations on motions to reopen. Specifically, the

BIA found that the petitioners’ evidence showed that mistreatment of Coptic

Christians in Egypt has occurred for decades and did not show that conditions for

Coptic Christians had materially deteriorated since the removal hearing in

February 2008.

Additionally, the BIA concluded that the petitioners’ new evidence did not

establish a prima facie claim for asylum, withholding of removal or CAT relief.

The BIA found that the petitioners’ evidence of the recent ransacking of Boules’s

law office in Egypt did not show that the threats and harassment would “escalate

to mistreatment of sufficient severity to constitute persecution if they return to

Egypt.” The BIA noted that the report of a similar incident at a doctor’s office had

not resulted in any physical harm to the doctor, that Boules had not suffered past

8
persecution and that Boules had not shown that he could not relocate to another

area in Egypt.

As to the petitioners’ request for cancellation of removal, the BIA

concluded that the petitioners’ motion to reopen was barred because they failed to

file it within the thirty-day voluntary departure deadline, which made them

statutorily ineligible for cancellation of removal. See INA § 240B(d)(1)(B), 8

U.S.C. § 1229c(d)(1)(B) (providing that alien who fails to depart voluntarily

within the time specified is ineligible for cancellation of removal for ten years).

On March 2, 2010, the petitioners filed this petition for review of the BIA’s

February 4, 2010 order.

II. DISCUSSION

An alien may file only one motion to reopen removal proceedings, and that

motion must “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)(A), (B), 8 U.S.C. § 1229a(c)(7)(A), (B). Generally,

the motion to reopen must be filed within ninety days of the final administrative

removal order. INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

§ 1003.2(c)(2). However, the ninety-day deadline and one-motion limit do not

9
apply if the motion to reopen is based on changed country conditions. INA

§ 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).

Because motions to reopen removal proceedings are disfavored, the movant

bears a “heavy burden.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir.

2009). To succeed on a motion to reopen, the movant must show that there is new

evidence that is material and was not available and could not have been discovered

or presented at the removal hearing. See 8 C.F.R. § 1003.2(c)(1); see also Verano-

Velasco v. U.S. Att’y Gen., 456 F.3d 1372, 1376 (11th Cir. 2006); Abdi, 430 F.3d

at 1149. Evidence is not “new” if it was available and could have been presented

at the alien’s former hearing. Verano-Velasco, 456 F.3d at 1377. To be

“material,” the evidence must be the kind that, if the proceedings were reopened,

would likely change the result in the case. See Ali v. U.S. Att’y Gen., 443 F.3d

804, 813 (11th Cir. 2006).

Here, the petitioners do not dispute that their second motion to reopen was

untimely and numerically barred.5 Thus, the only issue on appeal is whether the

5
We do not address the petitioners’ argument that the BIA abused its discretion in
construing their untimely motion to reconsider as a (first) motion to reopen. We lack jurisdiction
to review the BIA’s June 16, 2009 order denying their first motion to reconsider/motion to
reopen because the March 2, 2010 petition for review was not filed within thirty days of the entry
of that order. See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1); Dakane v. U.S. Att’y Gen., 399 F.3d
1269, 1272 n.3 (11th Cir. 2005) (explaining that period for filing petition for review “is
mandatory and jurisdictional, [and] is not subject to equitable tolling” (internal quotation marks
omitted)). For the same reason, we lack jurisdiction to review the BIA’s December 4, 2008

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petitioners presented material and previously unavailable evidence of changed

country conditions to overcome the time and numerical bars.

We agree with the BIA that most of the petitioners’ evidence does not show

a material change has occurred in Egypt since their removal proceedings in

February 2008. Most of their evidence shows that Coptic Christians continue to

be subjected to sporadic incidents of harassment and violence by Islamic

extremists, not that such mistreatment has recently escalated. Additionally, some

of the petitioners’ evidence pre-dates their February 2008 removal hearing, and

they do not explain how that evidence was previously unavailable.

The petitioners’ evidence of the January 2009 attack on Boules’s law office

and death threat does post-date the removal hearing. The BIA did not specifically

address whether this evidence showed a change in country conditions. See Zhang,

572 F.3d at 1319 (explaining that “[a]n alien cannot circumvent the requirement of

changed country conditions by demonstrating only a change in her personal

circumstances”). Rather, the BIA concluded that this evidence did not warrant

reopening because it did not establish a well-founded fear of persecution. See

Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th Cir. 2008) (explaining that

decision affirming the IJ’s denial of Boules’s application for asylum, withholding of removal and
CAT relief.

11
the BIA may deny a motion to reopen because of the failure to introduce evidence

that is material and previously unavailable or the failure to establish a prima facie

case or as an exercise of discretion). We agree.

This Court has concluded that threats, even in conjunction with minor

physical attacks or brief detentions, do not rise to the level of persecution. See,

e.g., Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008); Silva v.

U.S. Att’y Gen., 448 F.3d 1229, 1237-38 (11th Cir. 2006); Sepulveda v. U.S. Att’y

Gen., 401 F.3d 1226, 1231 (11th Cir. 2005). As the BIA pointed out, Boules was

never physically harmed when he lived in Egypt, has been outside Egypt for

nineteen years, and did not show that he was unable to avail himself of protection

of Egyptian authorities or that he could not relocate within Egypt to avoid the

threat of future harm. Under the circumstances, the BIA did not abuse its

discretion in denying the petitioners’ second motion to reopen because this

evidence did not establish a prima facie claim of future persecution.

Finally, we reject the petitioners’ claim that the BIA failed to consider all of

their evidence. With the exception of the children’s psychological evaluations, the

BIA addressed all the evidence submitted with the second motion to reopen and

explained why it failed to show a material change in country conditions. The BIA

was not required to analyze each piece of evidence individually, so long as its

12
decision gave reasoned consideration to the petitioners’ motion and made

adequate findings, which it did. See Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374

(11th Cir. 2006).6 For all these reasons, the BIA did not abuse its discretion in

denying the petitioners’ second motion to reopen.

PETITION DENIED.

6
On appeal, the petitioners do not challenge the BIA’s ruling that, to the extent the
petitioners sought to reopen their requests for cancellation of removal, their motion was barred
by their failure to file it within the time for voluntary departure. Thus, they have abandoned this
issue. See Sepulveda, 401 F.3d at 1228 n.2 (explaining that a petitioner abandons an issue by
failing to offer argument on that issue).

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