NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0024n.06
No. 08-3899
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 13, 2010
PATEN R. YUSIF, ) LEONARD GREEN, Clerk
)
Petitioner-Appellant, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE BOARD OF
ERIC H. HOLDER, JR., ) IMMIGRATION APPEALS
)
Respondent-Appellee. )
)
BEFORE: KENNEDY, COLE, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Petitioner Paten R. Yusif seeks review of the Board of Immigration Appeals’ (BIA) denial
of his second motion to reopen his removal proceedings based on changed country conditions in Iraq.
For the reasons that follow, we deny the petition for review and affirm the BIA’s decision.
I.
Yusif is a native and citizen of Iraq and a Chaldean Christian. In November 2000, he entered
the United States at the Los Angeles International Airport “using a presumably [] fake Belgian
passport” and seeking admission pursuant to the Visa Waiver Program. An immigration officer
stationed at the airport denied Yusif’s request for asylum and referred his claim to an Immigration
Judge (IJ).
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Yusif v. Holder
On March 28, 2002, the IJ conducted a hearing on the merits of Yusif’s asylum application.
In relevant part, Yusif testified that in October 1999, he was working in a wholesale liquor store that
he co-owned with his father when Iraqi intelligence officers entered the shop and asked him for
identification. After the Iraqi officers “beat[] . . . and insult[ed]” Yusif and his cousin, they snatched
and blindfolded the men and drove them to an unknown destination just outside of Baghdad. There,
the officers tried to coerce Yusif into signing a document that relinquished his ownership rights in
the liquor store. When Yusif refused, they placed him in a one meter cell without clothing, where
he was forced to sit on the floor, “knees pulled to his chest, [with] his arms grasping his legs.”
Officers intermittently removed Yusif from his cell, splashed him with cold water, and repeatedly
asked him to sign the document. After three months and ten days, Yusif finally agreed to sign it, and
he was released. Yusif returned to his liquor store, but it was occupied by the police.
Yusif told his family and friends about his captivity, despite warnings from his captors to
remain silent after his release. Soon thereafter, a friend warned Yusif to “leave his home” because
Iraqi “intelligence” had “heard” that he was discussing his imprisonment. Yusif testified that he
decided to flee Iraq because his captors “said to [him] before [he] went out of the prison whatever
happened to [him] should not be repeated. And, and if [he] t[old] anyone, [he] w[ould] be finished.
[He would] be dead.”
The IJ denied Yusif’s applications for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”).1 In his oral opinion, the IJ found that Yusif was “an
1
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1465 U.N.T.S. 85, G.A. Res. 39/46, U.N. GAOR 39th Sess., Supp. No.
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Yusif v. Holder
inherently incredible person” and specifically denied his application on that basis. The IJ also noted
that Yusif had not testified that his mistreatment in Iraq was based upon his status as a Chaldean
Christian or any anti-government position against the ruling Ba’ath party; thus, his unwillingness to
return to Iraq was not based upon a well-founded fear of persecution “on account of race, religion,
nationality, membership in a particular social group, or political opinion.”2 See 8 U.S.C. §§
1101(a)(42)(A), 1158(b)(1).
On October 27, 2003, the BIA affirmed the IJ’s decision in a summary order. In a previous
appeal, we agreed and affirmed the BIA’s decision, stating that “petitioner[’s] complain[ts] about
extortion, [i.e.,] that the officers would not release him until he signed over his family’s liquor
business . . . . fails to connect th[eir] action with any protected ground.” Yusif v. Ashcroft, 130 F.
App’x 797, 802 (6th Cir. 2005) (unpublished).
Four years later, Yusif filed a motion to reopen his removal proceedings. The BIA dismissed
his petition as untimely and rejected his claim that changed country conditions in Iraq excused his
untimeliness. Specifically, the BIA stated:
51 at 197, U.N. Doc. A/39/51 (1984); see also implementing regulations at 8 C.F.R. § 208.18.
2
In this regard, the IJ’s finding is supported by Yusif’s statement to the airport immigration
official that he fled Iraq because he “use[d] to have a big place that sold alcohol in big quantities.
Then the government took over.” When asked if this were the reason he left Iraq, he responded that
“[t]he main reason is because after [they took over the store], they would give us a hard time.” See
Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 162 n.11 (1993) (holding that a petitioner’s
unwillingness to return must be based upon “persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political opinion
. . . . ”).
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The Immigration Judge concluded, and we agreed, that the applicant’s overwhelming
problems with his credibility warranted the denial of his application for relief. The
evidence submitted with the motion does not render the applicant’s claim credible.
There are no statements from the applicant’s family in Iraq, who allegedly are also
Chaldean Christians, concerning the family’s situation and experiences in Iraq. The
lack of such evidence is significant. We note that the applicant’s aunt, a Chaldean
Christian, testified at his hearing, but she was in the United States legally and was
planning on returning to Iraq. In any event, if the applicant is to be believed, his
complaints primarily involve the confiscation of a commercial enterprise, a liquor
store, during the time of Saddam Hussein’s government, which has since been
removed.
(Citation omitted.) The record does not reveal whether Yusif appealed this decision.
On March 5, 2008, Yusif filed a second motion to reopen based on changed country
conditions in Iraq, the denial of which is the subject of this appeal. In a written opinion, the BIA
denied Yusif’s motion because he failed to demonstrate that changed country conditions in Iraq
warranted reopening his case. The BIA explained:
[A]pplicant’s original asylum claim was based on a fear of retribution from the
Saddam Hussein-led government as a result of disclosing to his family members the
circumstances surrounding his incarceration, mistreatment, and forced
relinquishment of a family-owned liquor store at the hands of government agents.
The Immigration Judge even noted that the applicant never indicated that his
mistreatment in Iraq was due to his Chaldean Christian background or his perceived
anti-government position against the ruling Ba’ath party. The applicant’s prior and
current motions to reopen are apparently based on his new source of fear, which is
the current Iraqi insurgency.
(Citations omitted.) Next, the BIA ruled that Yusif “ha[d] not shown that he will be singled out
individually for persecution or that a pattern or practice of persecution exists for similarly situated
Iraqi nationals.” Finally, the BIA noted that Yusif’s application was “barred [] by the time and
numerical limitations governing motions to reopen.”
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This timely appeal followed.
II.
Yusif appeals the BIA’s denial of his second motion to reopen. “The decision to grant or
deny a motion to reopen . . . is within the discretion of the [BIA],” 8 C.F.R. § 1003.2(a), and our
review is for an abuse of discretion. Guo Ping Wu v. Holder, 339 F. App’x 596, 599 (6th Cir. 2009)
(unpublished). The Supreme Court has made clear that the BIA retains broad discretion to deny such
motions. INS v. Doherty, 502 U.S. 314, 323 (1992).3 The Court has also stated that a motion to
reopen is analogous to a “motion for a new trial in a criminal case on the basis of newly discovered
evidence, as to which courts have uniformly held that the moving party bears a heavy burden.” I.N.S.
v. Abudu, 485 U.S. 94, 110 (1988).
3
A quick note about our jurisdiction is warranted. As amended by the Real ID Act of 2005,
the Immigration and Nationality Act strips federal courts of jurisdiction to review discretionary
decisions of immigration officials. Section 242(a)(2)(B)(ii) of the Act, 8 U.S.C. § 1252(a)(2)(B)(ii),
provides that “no court shall have jurisdiction to review . . . . any other decision or action of the
Attorney General or the Secretary of Homeland Security the authority for which is specified under
this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security,
other than the granting of relief under section 1158(a) of this title.” Section 1158(a) governs asylum
applications. We previously have reviewed the BIA’s denial of a reconsideration motion without
considering whether it is committed to the Attorney General’s “discretion” and thus subject to the
jurisdiction-stripping provision. See, e.g., Sanusi v. Gonzales, 474 F.3d 341, 345 (6th Cir. 2007).
The Seventh Circuit held recently that §1252 effectively eliminates appellate jurisdiction over
denials of motions to reopen. See Kucana v. Mukasey, 533 F.3d 534, 538 (7th Cir. 2008). The
Supreme Court has granted review of Kucana. Kucana v. Holder, 129 S. Ct. 2075 (2009) (No.
08-911). However, neither party in the present case has argued that § 1252(a)(2)(B)(ii) applies to
motions to reopen, and the current law binding this panel provides that we have jurisdiction to
review the BIA’s denial of Yusif’s motion to reopen. Alizoti v. Gonzales, 477 F.3d 448, 451-52 (6th
Cir. 2007). For these reasons, we consider the merits of his petition.
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We have explained that the BIA abuses its discretion if its 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.” Alizoti v. Gonzales, 477
F.3d 448, 453 (6th Cir. 2007) (internal quotation marks and citation omitted). The BIA will deny
a motion to reopen if the movant cannot establish a prima facie showing of eligibility for the
underlying requested relief. Id. at 451-52. In short, Yusif must show that there is a “reasonable
likelihood” if his case is reopened, that he will be able to establish that changed country conditions
in Iraq have caused him to have “a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion” and that the evidence
supporting his motion “was not available and would not have been discovered or presented at the
previous proceeding.” Id. at 452 (citation and quotation marks omitted); 8 U.S.C. §
1229a(c)(7)(C)(ii); 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1).
Because Yusif’s motion is time-barred under 8 U.S.C. § 1229a(c)(7)(C)(i), which requires
an asylum applicant to file a motion to reopen “within 90 days of the date of entry of a final
administrative order of removal[,]” he was required to demonstrate a “reasonable likelihood” that
he could establish materially changed country conditions in Iraq between the IJ’s 2002 denial of his
asylum application and his 2008 motion to reopen. The BIA concluded that Yusif’s evidence did
not satisfy the “heavy burden” articulated in Doherty because he “never indicated [during his 2002
testimony] that his mistreatment in Iraq was due to his Chaldean Christian background or his
perceived anti-government position against the ruling Ba’ath party.” (Citation omitted.) Moreover,
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evidence regarding his status as a Chaldean Christian in Iraq was relevant to his asylum petition and
“was . . . available and . . . discover[able]” and should have been “presented [at] [his] previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). As the BIA aptly noted, Yusif’s “new source of fear,”
namely, the Iraqi insurgency, “does not compel the conclusion that [Yusif’s] situation upon [his]
return to [Iraq] will be any different from the dangers faced by other citizens of that war-torn
country.” Sanchez-Trujillo v. I.N.S., 801 F.2d 1571, 1581 (9th Cir. 1986) (cited in
Castellano-Chacon v. I.N.S., 341 F.3d 533, 546 (6th Cir. 2003)). In addition, the determination of
current conditions in a particular country is within the purview of the BIA. See INS v. Ventura, 537
U.S. 12, 16-18 (2002). Thus, we will only overturn such a determination if “any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Simply put,
the record in this case does not compel a contrary result.
The BIA did not abuse its discretion because its denial of Yusif’s second motion to reopen
was “made with[] a rational explanation.” Alizoti, 477 F.3d at 453 (citation and quotation marks
omitted). In addition, its opinion was neither an “inexplicabl[e] depart[ure] from established
policies” nor did it “rest[] [up]on an impermissible basis such as invidious discrimination against
a particular race or group.” Id. For these reasons, we deny Yusif’s petition for review and affirm
the BIA’s decision.
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