Boutros Habchy v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 05-3078
___________

Boutros Chafic Habchy, *
*
Petitioner, *
*
v. *
*
Alberto Gonzales, Attorney General; *
Michael Chertoff, Secretary of the *
Department of Homeland Security; *
Asa Hutchinson, Under Secretary for *
Border and Transportation Security; * Petition for Review of an Order of
Michael J. Garcia, Assistant Secretary * the Board of Immigration Appeals.
for Immigration and Customs *
Enforcement; Debbie Achim, ICE *
Detention and Removal Operations *
Field Office Director, Chicago, IL; *
Ken Carlson, ICE Deputy Field Office *
Director, Kansas City, MO; Wardell *
Nance, Director, ICE Detention and *
Removal Operations, St. Louis, MO *
63108, *
*
Respondents. *
___________

Submitted: September 29, 2006
Filed: December 20, 2006
___________

Before ARNOLD, BYE, and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.

Boutros Chafic Habchy, a native and citizen of Lebanon, petitions this court for
review of two decisions of the Board of Immigration Appeals (“the Board”) denying
him relief under this country's asylum laws. First, he argues that the Board erred in
affirming the denial of his motion to reconsider a decision of the Immigration Judge
(“IJ”), in which the IJ refused to reopen a removal order on the basis of ineffective
assistance of counsel. Second, he argues that the Board erred in refusing to reopen his
case on the basis of changed country conditions in Lebanon between 2000 and 2003.
We deny the petition for review.

I. BACKGROUND

Habchy entered the United States at the Miami International Airport in 2000.
He lacked proper documentation, and he immediately requested asylum. Habchy
claimed that he had suffered past persecution at the hands of Hizballah, who detained
him and accused him of aiding Israel. Habchy also claimed that he feared future
persecution on the basis of his religion (Christianity) and his political beliefs, whether
real or imputed. After a venue transfer, his case was set for a hearing before an IJ in
St. Louis on November 21, 2000.

Habchy's counsel attended the hearing, but Habchy did not. Habchy’s counsel
moved for a continuance to locate him, but the IJ denied the motion and ordered
Habchy removed in absentia under 8 C.F.R. § 1003.26(c). One month later, Habchy
made a pro se motion to reopen his proceedings with the IJ. He claimed lack of notice
and ineffective assistance of counsel because his lawyer had failed to provide him
with notice of the hearing. While there was no question that his lawyer had received
notice of the hearing, thus satisfying the regulatory requirements under 8 C.F.R. §
1003.26(c)(2), Habchy argued that the lawyer had not relayed the notice to him.
According to Habchy, she sent him a letter regarding his case that did not provide the

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hearing date, and she failed to mention it when Habchy was in her office the day
before the hearing was scheduled to take place.

The IJ denied the motion on procedural grounds, noting that Habchy failed to
satisfy two of the three requirements for motions to reopen on the basis of ineffective
assistance of counsel as described by the Board in Matter of Lozada, 19 I. & N. Dec.
637, 639 (B.I.A. 1988). In particular, Habchy failed to attach an affidavit setting forth
relevant facts and the scope and terms of his representation with his former counsel,
and he failed to make a formal complaint regarding her ineffective assistance with the
appropriate bar association, or at least to explain why he had not taken such action.
Habchy did fully satisfy one Lozada requirement by informing his lawyer of the
allegations and giving her an opportunity to respond, as evidenced by the attachment
of her affidavit to his motion.

Habchy did not appeal this ruling to the Board. Instead, he obtained legal
counsel and filed another motion with the IJ, which he styled as a “motion to
reconsider” the denial of his initial motion to reopen. He filed it 223 days after his
removal in absentia, 192 days after filing his pro se motion to reopen, and 137 days
after the IJ ruled on his motion to reopen. In this second motion, Habchy purported
to cure the defects in his pro se motion to reopen with materials that would satisfy the
Lozada requirements, including a copy of a letter he filed with the Missouri Bar
Association describing the events, an affidavit setting forth the terms of the
representation, and an affidavit of his former counsel. The IJ denied his motion on
three alternative grounds: (1) it was untimely, given the thirty-day limit on filing
motions to reconsider, (2) even if it was timely, it alleged no error of fact or law as
required by motions to reconsider, and (3) even if the IJ were to construe it as a proper
second motion to reopen, which he would have to do in order to consider the new
evidentiary materials, it was not clear whether the letter that Habchy sent to the state
bar constituted a “complaint” within the meaning of Lozada. Id. at 639.

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 Habchy appealed this ruling to the Board, and it affirmed on March 7, 2003,
solely on the ground that his second motion was untimely. Shortly thereafter, Habchy
filed a motion to reopen before the Board, alleging that country conditions in Lebanon
had materially changed between 2000 and 2003. The Board denied this motion on the
merits, finding that Habchy had failed to make an adequate showing of changed
conditions during that time period.

Habchy filed a petition for habeas corpus in the United States District Court for
the Eastern District of Missouri on May 11, 2005 —the same day that President Bush
signed the REAL ID Act of 2005 into law—and the district court transferred the case
to this court pursuant to the Act. REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat.
231, 311, § 106(c) (codified at 8 U.S.C. § 1252 note).

II. DISCUSSION

We review decisions of the Board denying motions to reopen or reconsider for
abuse of discretion. Hernandez-Moran v. Gonzales, 408 F.3d 496, 499 (8th Cir.
2005); De Jimenez v. Ashcroft, 370 F.3d 783, 790 (8th Cir. 2004).1 This court may
find an abuse of discretion where “a decision is without rational explanation, departs
from established policies, invidiously discriminates against a particular race or group,
or where the agency fails to consider all factors presented by the alien or distorts
important aspects of the claim.” Hernandez-Moran, 408 F.3d at 499 (quotation
omitted). “We review constitutional challenges to immigration proceedings de novo.”
Shoaira v. Ashcroft, 377 F.3d 837, 842 (8th Cir. 2004).

1
Because Habchy did not directly appeal the IJ’s denial of his initial motion to
reopen to the Board, we review the denial of that motion insofar as it is relevant to
whether the IJ properly denied his subsequent motion to reconsider that decision. De
Jimenez, 370 F.3d at 789 (“[A]lthough we are not directly reviewing the [Board]’s
order denying petitioner’s motion to reopen, our review of the denial of the motion to
reconsider may require us to consider the validity of that order.”).

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 Habchy makes three broad claims on this appeal. First, he argues that the Board
abused its discretion in failing to reopen his case because his counsel’s failure to
notify him of the hearing was an “exceptional circumstance” that warranted rescission
of his in absentia removal order under 8 U.S.C. § 1229a(b)(5)(C), (e)(1). Habchy also
argues that these same facts rendered his removal proceedings fundamentally unfair,
and thus deprived him of due process. Finally, he argues that the Board abused its
discretion in denying his later motion to reopen on the basis of changed country
conditions. We examine each of these claims in turn.

A. Abuse of Discretion in Denying Habchy’s Motion to Reconsider

Habchy first argues that the Board erred in upholding the IJ's denial of his
motion to reconsider the IJ’s refusal to reopen his case on the basis of ineffective
assistance of counsel. With regard to removal orders entered in absentia, aliens are
allowed to file one motion to reopen removal proceedings within 180 days of the order
of removal. 8 C.F.R. § 1003.23(b)(4)(ii). They are also allowed to file one motion
to reconsider within thirty days of a final order of removal. 8 C.F.R. § 1003.23(b)(1).
Motions to reopen must state new, material facts; motions to reconsider must
“specify[] the errors of fact or law in the Immigration Judge's prior decision.” 8
C.F.R. § 1003.23(b)(2), (3). Ineffective assistance of counsel can constitute an
“exceptional circumstance” warranting rescission of an in absentia removal order.
See In re Grijalva-Barrera, 21 I. & N. Dec. 472, 474 (B.I.A. 1996); see also 8 U.S.C.
§ 1229a(b)(5)(C)(i), (e)(1) (authorizing the rescission of an in absentia removal order
when “exceptional circumstances” caused the alien’s failure to appear); Asaba v.
Ashcroft, 377 F.3d 9, 11 n.4 (1st Cir. 2004) (recognizing that the Board’s
interpretation of “exceptional circumstances” includes ineffective assistance of
counsel); Reyes v. Ashcroft, 358 F.3d 592, 596 (9th Cir. 2004) (same). This does not
excuse aliens from following proper procedures for proving these exceptional
circumstances, however, and the IJ retains the discretion to refuse to reopen the case.
8 C.F.R. § 1003.23(b)(3); Asaba, 377 F.3d at 11.

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 In Lozada, as noted above, the Board specified the three procedural
requirements for motions to reopen on the basis of ineffective assistance of counsel.
First, the movant must support his claim with an affidavit alleging facts relevant to the
ineffective assistance. Lozada, 19 I. & N. Dec. at 639. Second, the movant must
inform the former counsel of the allegation and give her an opportunity to respond.
Id. Finally, if the ineffective assistance would amount to a violation of legal or ethical
responsibilities, the movant must show whether he has filed a complaint with the
“appropriate disciplinary authorities regarding such representation, and if not, why
not.” Id. The Board considers these further requirements for such motions “necessary
if we are to have a basis for assessing the substantial number of claims of ineffective
assistance of counsel that come before the Board.” Id. We have upheld the Board’s
application of Lozada to these motions. See Hernandez-Moran, 408 F.3d at 499.

Habchy's initial motion to reopen was timely, and included the new, material
facts of his counsel's allegedly ineffective assistance. It did not, however, meet the
requirements of Lozada; as the IJ noted, Habchy did not include an affidavit relating
the relevant facts or any evidence that Habchy had filed a complaint with bar
authorities, nor any explanation as to why he had not. His motion to reconsider the
decision regarding the motion to reopen was untimely in that he filed it 137 days after
the IJ denied the motion to reopen, well beyond the thirty-day time limit for motions
to reconsider.

Habchy acknowledges these facts and applicable law, but nonetheless argues
that the Board erred in rejecting his motion to reconsider as untimely. Specifically,
he argues that (1) the lack of notice due to his counsel’s ineffective assistance
deprived him of an opportunity to present his case, (2) the IJ should not have applied
the Board’s allegedly Byzantine procedural requirements to his initial motion to
reopen considering that he filed it pro se, and (3) the IJ should have considered his
motion to reconsider as a motion to reopen. Under this argument, Habchy contends
that the IJ should have handled his claim in one of four ways. First, he could have

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relaxed the Lozada requirements for Habchy’s initial motion to reopen and granted it
on the basis of substantial compliance. Second, the IJ could have construed Habchy’s
motion to reconsider as a supplement to his original, timely-filed motion to reopen.
Third, he could have found that the two motions combined to form a single Lozada-
compliant motion to reopen on the date that Habchy filed the second motion, which
would have been timely filed if the IJ tolled the period between the filing of Habchy’s
initial motion to reopen and the IJ’s ruling that this initial motion did not comply with
Lozada. Fourth, the IJ could have simply found that Habchy filed two motions to
reopen and applied equitable tolling to both the time and numerical limitations on his
second motion. The IJ’s failure to follow any of these options, according to Habchy,
constituted an abuse of discretion. We address Habchy’s four proposed courses of
action below.

1. Application of Lozada to Habchy’s Initial Motion to Reopen

Habchy makes a reasonable argument that the IJ should not have applied
Lozada mechanistically, and some courts agree. See, e.g., Castillo-Perez v. INS, 212
F.3d 518, 525 (9th Cir. 2000) (“[T]he Lozada requirements are not sacrosanct.”). Our
circuit has not ruled on whether a strict application of those requirements could
constitute an abuse of discretion in certain circumstances, and we need not do so here.
At the very least, an IJ does not abuse his discretion in requiring substantial
compliance with the Lozada requirements when it is necessary to serve the overall
purposes of Lozada—that is, to “discourag[e] baseless allegations” and provide a basis
for determining the merits of an ineffective-assistance claim when those merits are not
evident from the record. Lozada, 19 I. & N. Dec. at 639; cf. Rodriguez-Lariz v. INS,
282 F.3d 1218, 1227 (9th Cir. 2002) (noting that the Lozada factors are not rigidly
applied “when the record shows a clear and obvious case of ineffective assistance”);
Castillo-Perez, 212 F.3d at 526 (refusing to require Lozada compliance when “[t]he
hearing record and briefing . . . make[] it perfectly clear” that an alien received
ineffective assistance of counsel).

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 Here, the hearing record is ambiguous. The mere fact that Habchy was absent
does not present a prima facie case of ineffective assistance, especially because
Habchy’s lawyer appeared and actually asked for a continuance to locate him.
Habchy’s motion to reopen makes a prima facie case, but it also leaves some doubt
as to where the blame for his lack of notice lies. In particular, there is some question
as to whether the lawyer included a copy of the notice with the rest of the documents
she sent to Habchy prior to his hearing (as she alleges she ordered her secretary to do)
and Habchy simply misplaced or ignored it, or whether the lawyer or her secretary
failed to send the notice, as Habchy alleges. Substantial compliance with Lozada
under these circumstances would have included some evidence that Habchy lodged
a formal complaint against the lawyer, or at least some explanation why Habchy did
not take such action, because it would have added strength to his allegations that the
lack of notice was attributable to his lawyer’s negligence rather than his own. Thus,
we find that the IJ did not abuse his discretion in denying Habchy’s initial motion to
reopen for failure to comply with Lozada.

2. Characterization of the Motion to Reconsider

We also reject Habchy’s proposition that the IJ abused his discretion in failing
to characterize his motion to reconsider as a mere supplement to his timely but
deficient motion to reopen. The IJ was free to interpret it in that fashion, of course,
and either he or the Attorney General could have reopened Habchy’s immigration
proceedings on their own motion at any time. 8 C.F.R. § 1003.23(b)(1). That may
have been the most appropriate course of action in this case. But that discretion lies
with the government, and the asylum regulations gave Habchy no explicit right to
supplement his motion. Even if we were to imply one, the IJ was well within his
discretion to refuse to allow Habchy to supplement that motion when his purported
attempt to do so came more than six months after filing the motion to reopen and more
than four months after the IJ made his decision on that motion.

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 3. Equitable Tolling

Habchy's arguments for equitable tolling—whether for tolling of time
limitations alone (if the IJ should have construed both motions as a single, Lozada-
compliant motion to reopen at the time he filed the latter motion) or for tolling of both
time and numerical limitations (if the IJ should have construed his motion to
reconsider as a second motion to reopen)—raise a number of issues of first impression
for this circuit. For example, Habchy would have this court decide whether the Board
may err in construing a motion in the same manner as the movant titled it, whether the
Board must apply equitable tolling of time and numerical limitations upon motions to
reopen in some situations, and whether an alien's choice to proceed pro se dictates the
stringency with which the Board may apply its procedural requirements. We need not
reach those issues here because Habchy’s claim fails in any event; the facts of his case
would not warrant equitable tolling.

In those circuits that recognize the “sparingly invoked doctrine” of equitable
tolling for ineffective-assistance-of-counsel claims, Jobe v. INS, 238 F.3d 96, 100 (1st
Cir. 2001) (en banc) (quotation omitted), aliens must exercise due diligence in
“discovering the deception, fraud, or error” giving rise to the ineffective assistance of
counsel. Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). In cases where the
equitable-tolling argument has prevailed, a court has excused an alien’s tardy motion
to reopen because of his attorneys’ fraud and misrepresentations regarding the status
of his case during the time in which he could have filed such a motion, Borges v.
Gonzales, 402 F.3d 398, 405-07 (3d Cir. 2005), or the attorneys’ active concealment
of their own ineffectiveness. Iturribarria, 321 F.3d at 898-99. Habchy’s case presents
a much different fact pattern. Here, Habchy clearly knew of the allegedly ineffective
assistance of his counsel almost immediately after the IJ ordered him removed in
absentia; he filed his initial motion to reopen within a month afterward. He thus
cannot argue that the time limitations to file motions to reopen should not apply here.
He actually filed a motion to reopen well within those limits.

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 The crux of Habchy’s argument, then, is that he lost an opportunity to reopen
his case because of his own ineffectiveness when proceeding pro se, which led to his
initial failure to file a Lozada-compliant motion to reopen. Thus, Habchy essentially
contends that we should toll the time and numerical limitations upon motions to
reopen from the time of the removal order until the time he abandoned his pro se
strategy and obtained new counsel. The Ninth Circuit has allowed tolling of time and
numerical limits even after an alien files a post-hearing motion. Rodriguez-Lariz, 282
F.3d at 1223-26. In that case, however, the court noted that the alien received
ineffective assistance of counsel for both his initial claim and in filing his first post-
hearing motion. Id. Thus, because Rodriguez-Lariz’s ineffective assistance had
resulted both in an order of removal and in the waste of his one permissible post-
hearing motion, and because the alien could not have reasonably discovered the
ineffective assistance until after a motion to reopen would be both time- and number-
barred, the court required the Board to apply equitable tolling. Id.

Here, by contrast, Habchy does not contend that he received ineffective
assistance in filing his motion to reopen; indeed, he opted to waive his statutory right
to counsel and claims to have received no assistance at all. We sympathize with the
plight of an alien who attempts to trudge through the morass of immigration law
without legal counsel, particularly after he believes his first lawyer deprived him of
an opportunity to present his case. But we do not believe it is an abuse of discretion
when the Board refuses to wholly overlook procedural requirements merely because
an alien makes the choice to file a motion pro se. Cf. United States v. Three Parcels
of Real Property, 43 F.3d 388, 392 (8th Cir. 1994) (holding, in the forfeiture context,
that “[p]rocedural default is not excused merely because claimants are proceeding pro
se”); Ellis v. Lockhart, 875 F.2d 200, 202 (8th Cir. 1989) (holding, in the habeas
context, that pro se litigants must follow procedural requirements, even though
“[m]any lawyers (ourselves among them) have from time to time had difficulty
probing all the intricacies of appellate and post-conviction practice”). While the IJ

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has a “duty to fully develop the record” as to relevant facts when an alien appears pro
se at an asylum hearing, Al Khouri v. Ashcroft, 362 F.3d 461, 465 (8th Cir. 2004), it
does not follow that the IJ also has a duty to suspend relevant law when an alien
makes a post-hearing motion pro se.

Furthermore, even if we were otherwise disposed to find that the Board should
have applied numerical tolling and allowed Habchy to file a second motion to reopen
that cured the deficiencies of the first, the tolling of time limitations would not be
appropriate in this case. “In general, a filing period may be equitably tolled if the
applicant seeking such relief demonstrates that he has exercised due diligence in
pursuing his case during the period he seeks to toll,” Kanyi v. Gonzales, 406 F.3d
1087, 1090 (8th Cir. 2005), and Habchy may have reasonably believed that it was
unnecessary to correct any Lozada deficiencies while his first motion to reopen was
still pending before the IJ. Even assuming that to be true, Habchy also waited more
than four months after the IJ’s decision on his motion to reopen—a decision that
spelled out the precise deficiencies of that motion under Lozada—to file his second
motion. Tolling is an equitable doctrine, and it is not available to those who sleep on
their rights. See Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000). Given the length
of time at issue and the fact that Habchy has offered no explanation for this delay, we
find that he failed to exercise the due diligence necessary to justify tolling the time
limitations on motions to reopen. The Board did not abuse its discretion in finding
that his second motion claiming ineffective assistance of counsel was time-barred.

Thus, even if the failure of Habchy's counsel to inform him of the hearing date
and location amounted to ineffective assistance, we find under the facts of this case
that his failure to file a Lozada-compliant motion to reopen within the statutory
deadline bars his claim for relief on the basis of “exceptional circumstances.”

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 B. Due Process

The Fifth Amendment guarantees due process to aliens in deportation
proceedings, Reno v. Flores, 507 U.S. 292, 306 (1993), and some circuits have held
that ineffective assistance of counsel may violate these due-process rights. See, e.g.,
Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131-32 (3d Cir. 2001); Magallanes-Damian
v. INS, 783 F.2d 931, 933 (9th Cir. 1986) (finding that ineffective assistance of
counsel may violate the Fifth Amendment when that ineffectiveness results in
fundamentally unfair proceedings). This court has squarely rejected an absolute
constitutional right to effective assistance of counsel with respect to asylum claims,
see Obleshchenko v. Ashcroft, 392 F.3d 970, 971 (8th Cir. 2004), but we have
recognized a due-process right to fundamentally fair removal proceedings. See Al
Khouri, 362 F.3d at 464 (“The Fifth Amendment’s due process clause mandates that
removal hearings be fundamentally fair.”). Because Habchy’s due-process claim rests
not only upon his counsel’s ineffective assistance before the IJ but also upon his lack
of notice (due to both the Board’s and his own misplaced reliance upon his lawyer to
provide him with notice) and the allegedly unfair procedural hurdles blocking the
reopening of his case, we assume without deciding that Habchy’s appeal implicates
a cognizable due-process allegation of fundamentally unfair removal proceedings.

For many of the same reasons that the Board did not abuse its discretion in
refusing to reopen Habchy’s case, we find that the Board and the IJ did not violate
Habchy’s due-process rights. Habchy had an opportunity for a hearing, and, if he did
not attend due to circumstances beyond his control (such as his counsel’s failure to
give him notice), he had one opportunity to prove those circumstances in the manner
the Board has required since it decided Lozada almost twenty years ago. By filing a
Lozada-deficient motion, Habchy failed to take full advantage of that opportunity.
The Lozada requirements served a valuable purpose in this particular case, and while
Habchy’s failure to satisfy those requirements was understandable, it was also
avoidable. The IJ did nothing to mislead Habchy regarding the nature of his rights,

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cf. Saakian v. INS, 252 F.3d 21, 26 (1st Cir. 2001), and due process did not require
the IJ to remake or ignore the Lozada requirements solely because Habchy lacked
knowledge of them. Nor, under the facts of this case, did due process require the IJ
to relax time and numerical limitations and consider an untimely second motion
purporting to conform to those requirements. Habchy had a right to be heard on his
asylum claim and, when he failed to exercise it, he had a reasonable opportunity to
prove that his failure to do so was excusable. Habchy may not have received
extraordinary process, but it was not less than what he was due under the Fifth
Amendment.

C. Changed country conditions

Habchy also argues that the Board abused its discretion in refusing to reopen
Habchy’s case on the basis of changed country conditions in Lebanon between his
2000 hearing and his 2003 motion to reopen on that basis. He points to the State
Department’s designation of Hizballah as a foreign terrorist organization, reports
showing the continued inability or refusal of the Lebanese government to control that
group, the authorized departure of several employees from the U.S. embassy in Beirut
due to the risk of terrorism, and evidence of politically motivated attacks and arrests
of members of the Lebanese Forces and their supporters.

We review denials of motions to reopen for abuse of discretion. Strato v.
Ashcroft, 388 F.3d 651, 654 (8th Cir. 2004). The Board may deny a motion to reopen
on the basis of new evidence on any of three grounds: “failure to establish a prima
facie case for the relief sought, failure to introduce previously unavailable, material
evidence, and a determination that even if these requirements were satisfied, the
movant would not be entitled to the discretionary grant of relief sought.” Khalaj v.
Cole, 46 F.3d 828, 834 (8th Cir. 1995). In this case, the Board denied Habchy’s
motion on the second of those three grounds, finding that the evidence he presented

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did not show that Hizballah posed a greater threat to Habchy in 2003 than it had in
2000.2

While the country reports show that Lebanese citizens with Habchy’s religious
and political affiliations were vulnerable to persecution, the Board was justified in
deciding that any change in country conditions was not material to Habchy’s asylum
claim. The country reports do not indicate any significant upsurge in violence, growth
in the power and influence of Hizballah, or major increase in the risk to Lebanese
Christians at the hands of that group during the time frame at issue in this case. Cf.
Dandan v. Ashcroft, 339 F.3d 567, 576 (7th Cir. 2003) (noting that the situation in
Lebanon, while unstable, was not “markedly different” in 2003 than it was in 2000).
The Attorney General, acting through the Board, has “broad discretion in deciding
whether to grant or deny” motions to reopen, Strato, 388 F.3d at 654, and we find that
it did not abuse that discretion here.

We note that today’s decision does not necessarily foreclose all avenues of
relief for Habchy. At oral argument, Habchy’s counsel made reference to the 2006
escalation of violence and tension involving Hizballah and Israel. The government
conceded that there is no legal obstacle preventing Habchy from filing a successive
motion to reopen on the basis of further changes in country conditions because such
motions do not carry the time and numerical limitations of motions to reopen on other

2
In its decision, the Board also seemed to place some emphasis upon Habchy’s
previous failure to appear for his asylum hearing, noting that he “abandoned his
opportunity to pursue asylum based upon his fear of Hizballah when he failed to
appear at his scheduled hearing.” We fail to see why Habchy’s absence from his 2000
hearing should impact his right to reopen his case at a later date based on new
evidence of changed country conditions, particularly when subsequent proceedings
show he had absolutely no intent to abandon his opportunity to pursue an asylum
claim. Therefore, we review only the primary ground for the Board’s decision: that
Habchy failed to establish a change in conditions from 2000 to 2003 that would
materially affect his eligibility for asylum.

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grounds, 8 C.F.R. § 1003.2(c)(3)(ii), and Habchy’s counsel indicated his intent to do
so. The government also assured this court that the Board would not deny such a
motion solely on the ground that Habchy would have qualified for asylum in 2000 had
he attended his original hearing. Thus, Habchy may attempt to prove that conditions
in Lebanon have changed from 2000 to the present in a way that materially affects his
risk of persecution on a protected ground. If the Board grants this motion, Habchy
will receive the same opportunity to present his asylum claim that he seeks in this
petition.

III. CONCLUSION

For the foregoing reasons, we deny the petition for review.
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