Alexander Arestov v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0803n.06
FILED
Nos. 10-3625, 11-3317
Jul 24, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT

ALEXANDER ALEXANDROVITCH )
ARESTOV, )
) ON PETITION FOR REVIEW
Petitioner, ) FROM A FINAL ORDER OF
) THE BOARD OF
v. ) IMMIGRATION APPEALS
)
ERIC H. HOLDER, JR., United States )
Attorney General, ) OPINION
)
Respondent. )
_______________________________________)

Before: MOORE, WHITE, and LUCERO,* Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. Petitioner Alexander Alexandrovitch Arestov

petitions this court for review from a final order of the Board of Immigration Appeals (“BIA”). The

BIA dismissed Arestov’s appeal of an immigration judge’s (“IJ”) order of removal, which denied

Arestov’s requests for asylum, withholding of removal under the Immigration and Nationality Act

(“INA”), and relief under the Convention Against Torture (“CAT”), all of which were based on

Arestov’s asserted fear of torture or persecution in Russia on account of his severe schizophrenia.

Although Arestov’s case is sympathetic, because of jurisdictional constraints and Arestov’s inability

to show that he is entitled to relief as a matter of law, we must DENY Arestov’s petition for review.

*
The Honorable Carlos F. Lucero, Circuit Judge for the United States Court of Appeals for
the Tenth Circuit, sitting by designation.
Nos. 10-3625, 11-3317
Arestov v. Holder

I. BACKGROUND

Arestov is a Russian citizen and native who was admitted to the United States in June 2001,

when he was twelve years old. After a brief period of absence following a voluntary departure, he

was readmitted as an immigrant and lawful permanent resident in March 2004. On September 15,

2009, the Department of Homeland Security (“DHS”) issued a Notice to Appear that charged

Arestov with removability based on a number of criminal convictions, including receiving and

concealing stolen property from a motor vehicle, possession of a controlled substance, resisting and

assaulting a police officer, breaking and entering a vehicle to steal less than $200 worth of property,

and domestic violence against his mother.

Although Arestov contested removability, DHS submitted documentation to support each

of the convictions. The IJ thus determined that clear and convincing evidence supported Arestov’s

removability under INA § 237(a)(2)(A)(i)–(ii), 8 U.S.C. § 1227(a)(2)(A)(i)–(ii), which permits

removal for crimes involving moral turpitude; INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i),

which permits removal for most convictions related to controlled substances; and INA § 237

(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), which permits removal for convictions involving crimes

of domestic violence.

At the removal hearing, testimony established that, in 2009, Arestov was diagnosed with

severe disorganized-type schizophrenia. Although the official diagnosis did not come until a few

years after Arestov arrived in the United States, a psychiatrist at the removal hearing testified to his

belief that the disease began progressing in 2004. Arestov’s asylum application detailed a vivid fear

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Arestov v. Holder

that, as a result of his mental illness, Arestov would experience “physical and mental abuse and

torture from people and [the] Government of Russia, . . . be homeless and hungry, and end up either

dying somewhere on the streets, or taken to a mental hospital where [he would] be subjected to drug

experiments, . . . forced sterilization, . . . [or have his] organs . . . taken out and sold for

transplantation.” Administrative Record (“A.R.”) at 488 (Asylum App. at 5). But when asked at the

hearing to describe his fears, Arestov responded: “I’m afraid of getting good, getting clothes, getting

an apartment and a job, communicating, and getting anywhere in life, really. But, at the same time,

there is possibility. I might just get lucky, you know?” A.R. at 211 (Removal Hr’g Tr. at 47).

Along these lines, Arestov speculated that he might have difficulty finding employment in Russia,

but indicated that he had not looked into applying for any jobs up to that point. He expressed some

uncertainty as to whether he would be able to locate and self-administer his medications.

Other evidence before the IJ presented a mixed view of the current situation in Russia with

respect to mental-health patients. Testimony by Arestov’s mother, who at one point worked in

Russia as a forensic pathologist, supported the fears stated in the asylum application. She expressed

concern that Arestov would be homeless and therefore picked up for medical experimentation or

used for organ transplantation. She also noted that the health-care system in Russia is government

controlled and unfair to mental patients. The documentary evidence, on the other hand, painted a

picture that was much less bleak. One journal article noted that there are some differences in the

treatment approaches and medications used for schizophrenia in Russia as compared with the United

States, but determined that the options in Russia generally were equally effective. Another article,

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Arestov v. Holder

while noting increasing problems with Russia’s mental-health system, identified the major problems

as involving deficient funding, drug shortages, and corruption. The article did not mention the types

of abuses cited by Arestov’s mother or his asylum application, such as drug experimentation or

forced sterilization. Even the U.N. Human Rights report, though recognizing significant

discrimination issues, reports of abuse against children with disabilities, and poor conditions in adult

facilities, did not do much to substantiate Arestov’s claim.

Turning first to Arestov’s request for asylum, the IJ noted Arestov’s 2004 entry into the

United States and concluded that his 2009 asylum application was untimely. Furthermore, according

to the IJ, the evidence was insufficient to establish that the failure to apply for asylum within one

year was due to an extraordinary circumstance or changed country conditions. In considering the

existence of extraordinary circumstances, the IJ looked only at whether the evidence was sufficient

to establish that the onset of mental illness was early enough to have tolled the one-year requirement.

After concluding that the evidence was insufficient to support such a conclusion, the IJ denied

asylum on timeliness grounds.

The IJ then considered the merits of Arestov’s requests for withholding of removal under the

INA and protection under the CAT. Although the IJ determined that Arestov had testified credibly,

she noted that only a small portion of his testimony related to his fears of persecution should he be

returned to Russia. These inconsistencies between Arestov’s testimony and the fears presented in

his application caused his credibility to suffer marginally but were not dispositive to his claim. The

IJ thus went on to consider whether Arestov belonged to a protected group under the INA, ultimately

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Arestov v. Holder

rejecting the notion that Arestov belonged to a particular social group consisting of Russians with

severe mental illness. Noting evidence in the record suggesting that medications for schizophrenia

were different, but equally effective, the IJ also concluded that Arestov had failed to demonstrate

persecution toward schizophrenia patients in Russia or any probability that he would suffer physical

or mental torture as a result of his identity. As further support for her conclusion, the IJ observed

that Arestov’s father lived with schizophrenia in Russia, and no evidence suggested that he had been

harmed or persecuted in any way.

In an order dated April 23, 2010, the BIA dismissed Arestov’s appeal. As to the asylum

claim, the BIA noted only that Arestov had not challenged the IJ’s timeliness determination. It then

proceeded to the merits of Arestov’s claims for withholding of removal under the INA and the CAT.1

With respect to those issues, the BIA found “no reason to disturb the Immigration Judge’s decision

denying [Arestov’s] applications for relief and protection.” A.R. at 4 (BIA Order at 2). The BIA

agreed that “mentally ill Russians” was “too broad and insufficiently cohesive to constitute a

particular social group” under the INA. Id. Furthermore, the BIA concluded that even if it were a

cognizable group, Arestov had not shown any likelihood of persecution on account of his mental

illness. To the contrary, according to the BIA, materials in the record supported reforms in the

psychiatric system that provided for humane patient treatment, appropriate treatment options, and

access to equally effective medication. Finally, the BIA determined that Arestov “ha[d] not shown

1
A review of the brief submitted to the BIA demonstrates that although Arestov attempted
to reargue the merits of his asylum claim, he did not challenge the IJ’s determination with respect
to timeliness.

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Arestov v. Holder

a likelihood of future torture in Russia on any basis,” thus rendering him ineligible for relief under

the CAT. Id. On May 19, 2010, Arestov filed a petition for review of the BIA’s final order

dismissing his appeal of the IJ’s removal order. Petition for Review, Arestov v. Holder, No. 10-3625

(6th Cir. May 19, 2010).

On December 15, 2010, Arestov filed with the BIA an untimely motion to reopen based on

changed country conditions. The motion offered an updated mental-health evaluation and purported

to present new evidence concerning persecution and human-rights abuses against mentally ill

patients in Russia. Although many of the materials were similar to those submitted during the

removal proceedings—materials that detailed systemic shortcomings but fell short of demonstrating

widespread intentional abuse—a 2009 article did provide accounts of inhuman and degrading

treatment that could feasibly constitute persecution. That article, which was published prior to

Arestov’s removal hearing, appears to be the only piece of documentary evidence that directly

supports his claims.

In an order filed on March 2, 2011, the BIA denied the motion to reopen. In doing so, the

BIA observed that much of the evidence attached to Arestov’s motion, including the 2009 article,

“could have been discovered and presented at the prior hearing, as the reports pre-date the hearing.”

Supplemental Administrative Record (“S.A.R.”) at 2 (BIA Order at 1). The BIA further determined

that even if it “consider[ed] that evidence in combination with the other evidence submitted with the

motion, it does not demonstrate that conditions have materially changed in Russia with regard to the

treatment of individuals with mental disorders since [Arestov’s] 2010 hearing.” Id. Thus, the BIA

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Arestov v. Holder

determined that the changed-country-conditions exception to the 90-day time limit for motions to

reopen did not apply. The BIA further stated that because Arestov had already been removed, it

would not exercise its discretion to reopen his case sua sponte. On March 29, 2011, Arestov filed

a separate petition for review of the BIA’s order denying his motion to reopen. Petition for Review,

Arestov v. Holder, No. 11-3317 (6th Cir. Mar. 29, 2011). This petition was consolidated with

Arestov’s earlier petition in case number 10-3625.

II. ANALYSIS

A. Jurisdiction

We first must address the limited scope of our jurisdiction over this appeal. As a general

matter, our jurisdiction over removal orders against criminal aliens is quite narrow. In particular,

we lack “jurisdiction to review any final order of removal against an alien who is removable by

reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii),

(B), (C), or (D).” 8 U.S.C. § 1252(a)(2)(C). Although the statute confers limited jurisdiction to

consider “constitutional claims or questions of law,” id. § 1252(a)(2)(D), we may not consider the

IJ’s or the BIA’s factual determinations underlying the removal order, see Graham v. Mukasey, 519

F.3d 546, 549 (6th Cir. 2008).

Arestov does not challenge any of the grounds for removability that the IJ determined by

clear and convincing evidence to exist.2 These grounds included two crimes involving moral

2
Some evidence in the administrative record suggests that at the time of the removal hearing,
Arestov was attempting to reopen these convictions and that two had been vacated. At the January
19, 2010, removal hearing, however, Arestov’s attorney indicated that none of the convictions had

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Arestov v. Holder

turpitude under 8 U.S.C. § 1227(a)(2)(A)(i)–(ii), and one conviction for possession of a controlled

substance under 8 U.S.C. § 1227(a)(2)(B)(i), all of which trigger the jurisdictional bar mandated in

8 U.S.C. § 1252(a)(2)(C).3 Thus, our jurisdiction over this appeal is limited to constitutional claims

and questions of law.

The issue then becomes whether Arestov has asserted factual or legal challenges to the BIA’s

determinations in this case. Our cases have identified the division between the two as follows. On

the one hand, “whether the BIA used the correct standard in reviewing the IJ’s decision and whether

it assigned to [the petitioner] the correct burden of proof” are examples of legal questions that are

subject to review. Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006). The same is true for matters

involving the BIA’s construction of a particular statute. Almuhtaseb v. Gonzales, 453 F.3d 743, 748

(6th Cir. 2006). On the other hand, “whether the BIA correctly considered, interpreted, and weighed

the evidence presented” does not present a question of law or a constitutional issue, and therefore

falls outside the scope of our review. Tran, 447 F.3d at 943 (citing Hamid v. Gonzales, 417 F.3d 642

(7th Cir. 2005)). Likewise, claims that at bottom rely only “on contesting factual determinations

‘rather than on statutory construction or a constitutional claim,” including claims that an IJ failed to

been vacated. It is not clear from the record whether any further action was taken to clear these
convictions and, correspondingly, whether such action would have impacted the grounds for
removal. The government in its brief pointed out Arestov’s counsel’s concession that none of the
convictions had been vacated, an assertion that Arestov does not challenge.
3
Although Arestov’s domestic-violence conviction rendered him removable under 8 U.S.C.
§ 1227(a)(2)(E)(i), offenses under that subsection of § 1227 are not included in the list of offenses
that implicate the jurisdictional limitations established in 8 U.S.C. § 1252(a)(2)(C).

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Arestov v. Holder

emphasize certain factors in a petitioner’s case, also are not subject to review. Ettienne v. Holder,

659 F.3d 513, 518 (6th Cir. 2011).

B. Withholding of Removal Under the INA and Relief Under the CAT

To be eligible for withholding of removal under the INA, Arestov must demonstrate “a clear

probability, that is, that it is more likely than not, that [he] would be subject to persecution” based

on one of five protected grounds: race, religion, nationality, membership in a particular social group,

or political opinion. Almuhtaseb, 453 F.3d at 749 (internal quotation marks omitted). Eligibility for

relief under the CAT, on the other hand, requires a showing that “it is more likely than not” that

Arestov would be subjected to torture if returned to Russia. Id. at 751 (internal quotation marks

omitted). Although relief under the CAT is possible even if the IJ denies a claim for withholding

of removal under the INA and need not be based on one of the five protected groups, Arestov

nevertheless must demonstrate a particularized threat of cruel or inhumane treatment that rises to the

level of torture. Mapouya v. Gonzales, 487 F.3d 396, 414 (6th Cir. 2007).

Arestov maintains that (1) the testimony was sufficient to establish a likelihood of

persecution on the basis of his mental illness, Pet’r’s Principal Br. at 25–27; (2) the evidence was

adequate to support Arestov’s fear of torture and his application for relief under the CAT, id. at

30–32; and (3) the IJ made a “convoluted” and therefore erroneous credibility determination that the

BIA failed to address, id. at 27–30. When the BIA reviews and affirms the IJ’s decision in a separate

opinion, we review the BIA’s order as the final agency action. Khalili v. Holder, 557 F.3d 429, 435

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Arestov v. Holder

(6th Cir. 2009). To the extent that the BIA adopted the IJ’s reasoning, however, we also review the

IJ’s decision. Id.

Under normal circumstances, we review any factual findings by the IJ and the BIA for

substantial evidence. Id. Accordingly, “[t]o reverse the BIA’s determination, we must find that the

evidence not only supports a contrary conclusion, but indeed compels it.” Almuhtaseb, 453 F.3d at

749 (internal quotation marks omitted); see also Kaba v. Mukasey, 546 F.3d 741, 747 (6th Cir. 2008)

(noting that the substantial-evidence standard does not permit reversal of the BIA’s or the IJ’s

determination unless the record, considered as a whole, compels a contrary result). But, as we noted

above, our review is limited in this case. In order to determine the scope of our review, we first

“must consider what type of analysis would be necessary to evaluate the claim on its merits.”

Ettienne, 659 F.3d at 517. Only if that analysis requires resolution of legal or constitutional

questions are Arestov’s claims subject to review. See id.

Arestov’s first argument—whether the evidence supports Arestov’s reasonable fear of

persecution—is based in large part on fact-based challenges over which we lack jurisdiction under

8 U.S.C. § 1252(a)(2)(C), (D). To the extent that Arestov challenges the credibility determinations

and weighing of the evidence, these arguments present questions of fact rather than the application

of a particular legal standard, and thus are not subject to review. Johns v. Holder, 678 F.3d 404, 406

(6th Cir. 2012) (noting, in the context of hardship waivers over which jurisdiction is similarly limited

to constitutional claims and questions of law, that “we do not have jurisdiction to review the Board’s

assessment of the weight or credibility of the evidence”).

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The same is generally true of Arestov’s claim that the BIA erred in determining that he failed

to establish a likelihood of torture under the CAT. Tran, 447 F.3d at 943 (noting that review of

“whether the BIA correctly considered, interpreted, and weighed the evidence presented” with

respect to a petitioner’s request for relief under the CAT is barred under § 1252(a)(2)(D) (citing

Hamid v. Gonzales, 417 F.3d 642 (7th Cir. 2005))); see also Magasouba v. Mukasey, 543 F.3d 13,

16 (1st Cir. 2008) (concluding that consideration of “fact-based challenges to the withholding and

CAT rulings,” such as “the BIA’s factual findings as to credibility, evidentiary weight, and

satisfaction of a correctly framed burden of proof” are beyond the court’s limited jurisdiction under

§ 1252(a)(2)(C) (internal quotation marks omitted)).4 Despite Arestov’s attempts to frame his CAT

claim as involving a legal issue concerning the adequacy of the IJ’s and BIA’s analysis of the claim,

at bottom, he simply challenges the agency’s weighing of the evidence. Contrary to Arestov’s claim,

the BIA’s rejection of his CAT claim was not based on the IJ’s purported adverse credibility finding

or on a legal error in distinguishing the applicable standards for relief under the INA as opposed to

under the CAT. Instead, the BIA and the IJ both determined that the evidence submitted did not

support a likelihood of torture.

4
Arestov also contends that the BIA erred in determining that severely mentally ill Russians
do not constitute a particular social group. Although Arestov’s claim with respect to what
constitutes a particular social group presents a question of law over which we do have jurisdiction,
we do not consider it because his claim is foreclosed by the IJ’s factual determination that he did not
demonstrate the requisite likelihood of persecution. See generally Mulla v. Holder, 462 F. App’x
592, 594–95 (6th Cir. 2012) (unpublished opinion).

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Arestov v. Holder

Although the above precedents may not entirely eliminate our jurisdiction to consider the

ultimate question whether the BIA’s determination is based on substantial evidence, see Johns, 678

F.3d at 407, to the extent that we do have jurisdiction to review Arestov’s claims for relief under the

INA and the CAT, we cannot conclude that the BIA’s decision was in error. While testimony from

Arestov’s mother supported his fear of future persecution, the other testimony and documentary

evidence does not compel the conclusion that it is more likely than not that Arestov would be

persecuted upon his return. In some instances, the evidence in fact supports the opposite conclusion.

Indeed, even Arestov’s own testimony did not support his claims for relief. Given the lack of

evidentiary support for Arestov’s claims, we cannot say that the IJ’s determination was unreasonable.

To establish a well-founded fear of future persecution, “an applicant cannot rely on speculative

conclusions or mere assertions of fear of possible persecution, but instead must offer reasonably

specific information showing a real threat of individual persecution.” Mapouya, 487 F.3d at 412

(internal quotation marks omitted). Speculative claims about drug experimentation or organ

harvesting were effectively all that Arestov presented at the merits hearing.

Arestov’s attempt to reframe his challenge to the IJ’s credibility determination—which

generally qualifies as a finding of fact, Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir. 2006)—is

similarly unpersuasive. That the BIA did not address the IJ’s credibility determination does not

alone give rise to a reviewable question of law or warrant remand. Instead, we have noted that

“when an IJ or the BIA expresses suspicion about an applicant’s lack of credibility but the BIA fails

to make an explicit adverse determination and instead denies relief on some other basis, we will

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Arestov v. Holder

assume that the applicant was credible in order to review the actual grounds for the ruling.” Cruz-

Samayoa v. Holder, 607 F.3d 1145, 1150 (6th Cir. 2010) (internal quotation marks omitted). Here,

neither the IJ’s nor the BIA’s conclusion hinged on the credibility determination, and, in light of the

scant additional evidence presented to support Arestov’s requests for relief, the BIA’s failure to make

an explicit credibility determination did not, as Arestov suggests, amount to legal error. Even if the

BIA had unequivocally made a favorable credibility determination, Arestov still has not

demonstrated that he is entitled to relief.

C. Arestov’s Asylum Application

Arestov also argues that the IJ erred in denying his asylum application on timeliness grounds

and that the BIA erred in concluding that he had not challenged the timeliness determination on

appeal. With respect to the merits of his timeliness argument, Arestov maintains that his asylum

application meets the “extraordinary circumstances” exception to the one-year filing requirement for

asylum applications on two grounds: (1) he was a lawful permanent resident prior to receiving the

notice to appear and filed the asylum application only a few months after receiving the notice,

entitling him to consideration under 8 C.F.R. § 208.4(a)(5)(iv), and (2) he began suffering from

either a “serious illness or mental . . . disability” or a “[l]egal disability” within a year of his arrival,

8 C.F.R. §208.4(a)(5)(i), (ii). Pet’r’s Principal Br. at 16–18. The IJ rejected the second ground but

did not acknowledge or analyze the first.

As a general matter, we lack jurisdiction to review a determination that an asylum application

was untimely unless the challenge raises a constitutional question or other question of law.

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Almuhtaseb, 453 F.3d at 748. When the IJ or BIA makes a legal error in evaluating timeliness, the

question becomes one of due process and therefore falls within our limited jurisdiction. Gjyzi v.

Ashcroft, 386 F.3d 710, 714 (6th Cir. 2004). To prevail on a due-process claim, Arestov must

demonstrate both error “such as might have led to a denial of justice” and the existence of prejudice.

Hachem v. Holder, 656 F.3d 430, 435 (6th Cir. 2011) (internal quotation marks omitted).

The regulations provide that an extraordinary circumstance “may excuse the failure to file

within the 1–year period as long as the alien filed the application within a reasonable period given

those circumstances.” 8 C.F.R. § 208.4(a)(5). One of the listed circumstances is that “[t]he

applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was

given parole, until a reasonable period before the filing of the asylum application.” Id.

§ 208.4(a)(5)(iv). In response to the question concerning why the application for asylum was filed

more than one year after arriving in the United States, Arestov directly referenced the requirements

of this provision, stating: “I am a Lawful Permanent Resident who is in Immigration Court

proceedings since September 15, 2009. I am filing my asylum application within a reasonable

period, at first date designated by the Immigration Judge.” A.R. at 516. Because Arestov facially

appears to have a strong argument for demonstrating an applicable extraordinary circumstance, the

IJ’s utter failure to consider it likely constitutes the type of prejudicial error that would, under our

precedents, state a colorable due-process claim.

Even if, however, we were to find that the IJ’s failure to consider Arestov’s immigration

status states a viable constitutional claim, we nevertheless lack jurisdiction because Arestov failed

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Arestov v. Holder

to raise the defects in the IJ’s decision in his appeal to the BIA. “[B]efore raising an immigration

issue in federal court, a petitioner must normally present all reviewable issues to the BIA.” Khalili,

557 F.3d at 432–33. This requirement is statutory rather than prudential, see 8 U.S.C. § 1252(d)(1)

(permitting review of “a final order of removal only if . . . the alien has exhausted all administrative

remedies available to the alien as of right”), and accordingly places a bona fide limit on our

jurisdiction, see Gor v. Holder, 607 F.3d 180, 185 (6th Cir. 2010), cert. denied, 131 S. Ct. 3058

(2011); Ramani v. Ashcroft, 378 F.3d 554, 560–61 (6th Cir. 2004); Hasan v. Ashcroft, 397 F.3d 417,

420 (6th Cir. 2005).

Even generously construing Arestov’s filings before the BIA, we cannot conclude that he

raised the timeliness issue before the BIA.5 Although it is true, as Arestov asserts, that his brief

before the BIA repeatedly mentions the word “asylum,” the discussion involves only the merits of

Arestov’s asylum claim and never once mentions the IJ’s determination as to the timeliness of

Arestov’s asylum application. A properly raised claim before the BIA requires that an issue was not

only mentioned but also that it was “reasonably developed in the petitioner’s brief to the BIA.”

Khalili, 557 F.3d at 433. Arestov’s brief did not meet this standard. Thus, because Arestov’s

timeliness argument could have been presented to the BIA but was not properly raised, we are unable

5
The government contends that the timeliness issue is moot on account of the fact that the
BIA considered Arestov’s asylum claim on the merits. The BIA’s decision, however, does no more
than observe that Arestov failed to challenge the IJ’s timeliness determination on appeal before
moving on to the merits of his request for withholding of removal. The portion of the IJ’s decision
that purportedly addresses the merits of Arestov’s asylum claim, upon closer reading, evaluates only
Arestov’s eligibility for withholding of removal. See A.R. at 22–24 (IJ Decision at 16–18). We
therefore do not agree that Arestov’s timeliness argument can be decided on mootness grounds.

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Arestov v. Holder

to review it. See Diallo v. Holder, 364 F. App’x 992, 996 (6th Cir. 2010) (applying § 1252(d)(1) to

a constitutional or statutory claim relating to the timeliness of the petitioner’s asylum claim).

D. Arestov’s Motion to Reopen

Arestov separately challenges the BIA’s order denying his motion to reopen. In denying

Arestov’s motion, the BIA reasoned that Arestov had failed to establish changed country conditions

to excuse his untimely filing. The BIA also declined to exercise its discretion to reopen Arestov’s

case sua sponte. Arestov purports to challenge all aspects of the ruling, but focuses his argument on

the BIA’s refusal to grant the motion sua sponte and on the assertion that the BIA abused its

discretion by denying Arestov’s stay of removal because that action “stripp[ed the BIA] of

jurisdiction” and “prevented the BIA from exercising independent judgment and discretion on the

Motion to Reopen sua sponte.” Pet’r’s Second Br. at 31. Arestov also contends that the BIA erred

in failing to consider his claim for equitable tolling arising from ineffective assistance of counsel.

We address each of these arguments in turn.

Initially, there is some question whether Arestov has waived his challenge to the BIA’s

conclusion that he did not meet the changed-country-conditions exception to the filing deadline for

a motion to reopen. Even assuming that Arestov has properly raised the argument, however, his

convictions for crimes involving moral turpitude and for possession of a controlled substance

mandate application of 8 U.S.C. § 1252(a)(2)(C) and (D), which again precludes our review. Pepaj

v. Mukasey, 509 F.3d 725, 728 (6th Cir. 2007). In Pepaj v. Mukasey, we specifically addressed the

application of those provisions to a motion to reopen alleging changed country conditions. Id.

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There, we concluded that because such claims involve a “‘predominantly factual determination’” and

hinge on “‘contesting [such] factual determinations rather than on statutory construction or a

constitutional claim,’” we lack jurisdiction to consider them. Id. (quoting Almuhtaseb, 453 F.3d at

748–49).

Even if our jurisdiction were not circumscribed in this case, Arestov’s claim would fail. Our

normal review of this issue is for abuse of discretion, which looks only to “whether the denial of

[the] motion to reopen . . . 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.” Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006) (alterations in

original) (internal quotation marks omitted).

Arestov maintains that the BIA erred by considering changed country conditions only as of

Arestov’s 2010 hearing instead of considering the relevant changes from the 2007 date at which

Arestov’s prior counsel allegedly ceased to conduct its pre-removal-hearing research. Arestov,

however, cites no authority for the proposition that the BIA could have done so, and the section of

the INA that grants authority to reopen removal proceedings based on changed country conditions

appears to foreclose it. In particular, the INA requires that the evidence of such conditions “is

material and was not available and would not have been discovered or presented at the previous

hearing.” 8 U.S.C. § 1229a(c)(7)(C)(ii) (emphasis added); see also 8 C.F.R. 1003.2(c)(3)(ii). As

the BIA pointed out, most of the evidence presented in concert with the motion to reopen predated

Arestov’s removal hearing and therefore does not qualify as “new” under the statute or regulations.

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Nos. 10-3625, 11-3317
Arestov v. Holder

Thus, utilizing the 2007 date Arestov suggests would encompass evidence that does not meet the

statutory requirements for granting a motion to reopen. Cf. Bi Feng Liu v. Holder, 560 F.3d 485, 491

(6th Cir. 2009) (faulting the petitioner for providing numerous materials dated before the IJ issued

the removal order and for failing to “present [a] comparison of the country conditions from the time

between his removal order in June 2005 and his motion to reopen in December 2006”). Accordingly,

we cannot say that the BIA abused its discretion in considering the evidence as applied to the

conditions in Russia after Arestov’s 2010 hearing.

With respect to the BIA’s refusal to exercise its sua sponte authority to grant Arestov’s

motion to reopen, Arestov contends that the Supreme Court’s decision in Kucana v. Holder, 130 S.

Ct. 827 (2010), controls our result. Kucana held that the limitations on judicial review set forth in

8 U.S.C. § 1252(a)(2)(B) apply only to decisions that are made discretionary by statute, and not to

grants of discretion to the BIA that are based solely in agency regulations. Id. at 831. This facially

appears to be in conflict with our prior decisions in Harchenko v. INS, 379 F.3d 405, 410–11 (6th

Cir. 2004), and Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008), both of which concluded that

the BIA’s refusal to exercise its sua sponte authority to reopen removal hearings—which derives

from a regulatory provision, 8 C.F.R. § 1003.2(a)—is not subject to judicial review.

In Gor v. Holder, however, we determined that Kucana merely called into doubt the

reasoning in those prior cases rather than overruling them. 607 F.3d at 188. Specifically, we

concluded that

Kucana cannot fairly be read as overruling [Harchenko and Barry], since the
Supreme Court specifically expressed ‘no opinion on whether federal courts may

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Arestov v. Holder

review [BIA refusals] to reopen removal proceedings sua sponte.’ 130 S. Ct. at 839
n.18. Therefore, we are constrained to hold that we lack jurisdiction to review the
BIA’s denial of the petitioner’s motion to reopen sua sponte.

Id. (second alteration in original). Although we express no opinion on whether Gor was correctly

decided, we are bound to dismiss Arestov’s challenge for lack of jurisdiction.6

Arestov’s objection to the BIA’s denial of his motion to stay his removal mischaracterizes

the result of that decision. Although we have held that the government may not execute a removal

order in order to divest itself or this court of jurisdiction over appeals or motions to reopen, Pruidze

v. Holder, 632 F.3d 234, 239–40 (6th Cir. 2011) (holding that the BIA could not “improperly deny

[a petitioner’s] motion on the invalid ground that it does not have jurisdiction over motions to reopen

filed by aliens abroad”); Madrigal v. Holder, 572 F.3d 239, 245 (6th Cir. 2009), that is not what the

BIA did here. Instead, the BIA considered the merits of the motion to reopen; concluded that the

motion was untimely; considered whether Arestov had presented evidence of changed circumstances;

6
As part of his challenge to the BIA’s denial of the motion to reopen, Arestov requests that
the court grant en banc review of a purported conflict in our cases regarding judicial review of the
BIA’s discretion to grant such motions sua sponte. Arestov maintains that the interpretation of
Kucana in Gor conflicts with the analysis in our subsequent decision in Dugboe v. Holder, 644 F.3d
462, 469 (6th Cir. 2011). First, we note that our court has declined to grant an initial hearing en banc
in this case. Arestov v. Holder, No. 11-3317 (6th Cir. Aug. 22, 2011) (unpublished order). More
importantly, however, we do not believe Gor and Dugboe are irreconcilable. Unlike Gor, Dugboe
involved our jurisdiction over an IJ’s order denying a venue-transfer motion. 644 F.3d at 469.
Applying Kucana, we concluded that we had jurisdiction over the order because the IJ’s discretion
was granted by regulation rather than through the INA. Id. For the reasons discussed above, we
determined in Gor that, due to preexisting Sixth Circuit precedent, the same result did not apply to
cases involving the BIA’s exercise of its sua sponte authority to grant a motion to reopen. Gor, 607
F.3d at 188. Because only Gor involved the statutory and regulatory provisions at issue here, that
case rather than Dugboe governs our review. Arestov is free, of course, to seek rehearing en banc.

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Arestov v. Holder

and then declined to exercise its sua sponte authority to reopen Arestov’s appeal. Specifically, the

BIA asserted that, under the circumstances of Arestov’s case, it would “not exercise [its] discretion

to reopen sua sponte”; the BIA did not state that it lacked jurisdiction to do so. Id. Because the BIA

decided Arestov’s motion to reopen on the merits rather than relying on improper jurisdictional

limitations, Arestov cannot prevail on his argument that the BIA abused its discretion by denying

his stay of removal so as to deprive itself of jurisdiction over his motion to reopen.

Finally, Arestov contends that the case should be remanded because the BIA failed to

consider his claim for equitable tolling based on ineffective assistance of counsel during the removal

proceedings. Arestov, however, did not actually raise this claim in the motion to reopen before the

BIA. Although Arestov criticized his former counsel’s inexperience in an attempt to persuade the

BIA to exercise its discretion to reopen the removal proceedings sua sponte, Arestov made no

attempt to comply with the procedural requirements for ineffective-assistance-of-counsel claims as

set forth in Lozada, 19 I & N Dec. 637 (BIA 1988). “An alien who fails to comply with Lozada’s

requirements forfeits [his] ineffective-assistance-of-counsel claim.” Pepaj, 509 F.3d at 727.

Because the claim was not properly raised below, we will not consider it here. Khalili, 557 F.3d at

432–33.

III. CONCLUSION

For the foregoing reasons, we DENY Arestov’s petition for review.

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