[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11165 ELEVENTH CIRCUIT
JANUARY 22, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
Agency No. A097-951-791
JEWAN DAT,
a.k.a. Yudhishtira Sawh,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 22, 2010)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Jewan Dat, a native and citizen of Guyana, petitions us for review of the
Board of Immigration Appeals’ (“BIA”) decision denying his motion to reopen his
previously denied application for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231(b)(3), and relief
under the United Nations Convention Against Torture, and Other Cruel, Inhuman
and Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). After
careful review, we DENY the petition.
I. BACKGROUND
Upon entering the United States in April 2004 with a fraudulent passport and
I-551 alien registration card, Dat was issued a Notice to Appear charging him with
removability under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i).
Administrative Record (“AR”) at 304-05. Dat conceded removability at an initial
hearing before an immigration judge (“IJ”) on 18 May 2004. Id. at 148-49. On 17
August 2004, Dat formally applied for asylum, withholding of removal, and CAT
relief. Id. at 152-53; 274-83.
In his application, Dat sought relief based on his race and political opinion.
Id. at 278. He alleged that in 2001, three Afro-Guyanese individuals approached
him as he was going to vote, assaulted him, and threatened to kill him if he voted
for a member of the People’s Progressive Party (“PPP”). Id. In 2002, three
Afro-Guyanese men threw stones at his home, shouted epithets, and demanded that
he leave the county. Id. Dat also alleged that he was stabbed in 2003 and robbed
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in 2004. During both attacks, his assailants threatened to kill him because he was
Indian. Id. at 278, 283. Dat stated that he left Guyana because he feared the
Afro-Guyanese would kill him on account of his race and “assumed political
affiliation” if he remained. Id. at 283.
Dat submitted multiple documents in support of his application, including
letters from family members corroborating his claims of assault and intimidation,
two newspaper articles from 2002 and 2004 describing the mistreatment of Indians
in Guyana, and a 2004 United States Citizenship and Immigration Services
(“USCIS”) information sheet detailing the treatment of “criminal deportees to
Guyana.” Id. at 193-96, 211-14, 270-72. The information sheet noted that
Guyanese laws permitted criminal deportees to be placed under surveillance and
that government officials allegedly hired “hit squads” to assassinate some
suspected criminals. Id. at 213. Amnesty International articles also described
these killings and noted that Indo-Guyanese citizens were disproportionately
affected by violent crime in Guyana. Id. at 215-16, 218.
The record also contains the 2004 U.S. Department of State Country Report
on Human Rights Practices for Guyana. The report noted that Guyana has a
multiparty political system and that the PPP was reelected in 2001 in what the
report described as a “generally free and fair national election.” Id. at 198. The
report further indicated that “longstanding ethnic tensions” between Guyanese of
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Indian and African descent had led to “incidents of discrimination” and that
although both racial groups waged propaganda attacks on one another, the civil
service and security forces were “overwhelmingly staffed by Afro-Guyanese.” Id.
at 198, 206.
At the 10 February 2006 hearing on Dat’s application, Dat testified that he
belonged to the PPP when he lived in Guyana and that he received threats from the
Afro-Guyanese opposition party as a result of his membership. Id. at 167-68. He
testified regarding the assaults he had alleged in his application and stated that if he
returned to Guyana he would be killed “[b]y the African guy” because he is Indian.
Id. at 181. On cross-examination, Dat stated that he did not have medical records
or police reports confirming the assaults, and admitted that his family had not been
threatened or harmed since he left Guyana. Id. at 182-84.
The IJ issued an oral decision denying Dat’s application after finding that
Dat was not active in the PPP and had provided no evidence that he experienced
problems “because of [his] limited activity in support of the PPP.” Id. at 142. The
IJ found that although racial tensions existed between the Indo- and
Afro-Guyanese populations, Dat’s experiences did not rise to the level of
persecution. Id. at 143-44. Dat appealed the IJ’s decision to the BIA on 13 March
2006. Id. at 132.
While his appeal was pending before the BIA, Dat married a U.S. citizen and
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filed with the BIA a “motion to terminate proceedings,” in which he sought an
adjustment of status based upon his marriage. Id. at 93-94, 109-10. Citing
proposed amendments to the federal regulations governing eligibility for
adjustment of status, Dat claimed that he should be permitted to pursue adjustment
of status before an IJ. Id. at 95. Dat argued in the alternative that he should be
granted refugee status based on his well-founded fear of persecution if returned to
Guyana. Id. at 95-97.
On 9 August 2007, the BIA issued a decision adopting and affirming the IJ’s
decision and holding that Dat had failed to establish eligibility for asylum,
withholding of removal, or CAT relief. Id. at 83. The BIA also denied Dat’s
motion to terminate the proceedings after finding that Dat did not fit within the
“narrow exception that would permit an [IJ] to consider his application for
adjustment of status.” Id. at 84. The BIA dismissed Dat’s appeal accordingly. Id.
On 7 January 2009, Dat moved the BIA to reopen his removal proceedings
based on changed country conditions, arguing that racial violence in Guyana was
“out of control.” Id. at 32, 34, 37-38. Dat stated additionally that USCIS had
denied his request for an adjustment of status and asked the BIA to remand the
case to an IJ so that the IJ could “administratively close the case pending the
decision of the administrative appeals unit regarding adjustment of status relief.”
Id. at 32-33.
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Dat submitted several documents in support of his motion to reopen,
including: (1) a BBC News report and two additional BBC articles detailing a mass
murder in a Guyanese village that, according to the Guyanese president, “may have
been meant to stir up ethnic tension” in the mostly Indian village; (2) an “issue
paper” prepared by the Canadian Immigration and Refugee Board noting a lack of
consensus over “whether the Indo-Guyanese are disproportionately victimized in
criminal situations”; (3) two articles describing a gang attack on a police station;
and (4) a news release from the Guyana Government Information Agency
reporting on an “upsurge in crime” and the government’s plans for dealing with it.
Id. at 48-49, 50-55, 58-59, 60-67, 75-79.
Finally, Dat submitted the 2008 United States Department of State Country
Report on Human Rights Practices for Guyana. The 2008 report was largely
identical to the 2004 report, except that it omitted the 2004 report’s introductory
clause concerning discrimination based on Indo-Guyanese ethnicity. See id. at 68.
The 2008 report indicated that “[r]acial and ethnic tensions manifested during the
2006 election campaign [had] diminished” and that “[t]he Ethnic Relations
Commission [had] resolved 50 cases involving complaints of discrimination
against members of racial or ethnic minorities.” Id. at 72.
On 9 January 2009, Dat filed a motion to stay removal proceedings pending
the BIA’s decision on his motion to reopen. Id. at 8. In its 17 February 2009
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decision, the BIA first found that Dat’s motion was untimely because it was filed
more than ninety days after entry of its 9 August 2007 order dismissing his appeal.
Id. at 2; see INA § 240(c)(7)(C)(i) (2009); 8 U.S.C. § 1229a(c)(7)(C)(i)(2009); 8
C.F.R. § 1003.2(c)(2) (2009). It then found that Dat’s motion to reopen was not
exempt from the ninety-day time-bar because none of the evidence Dat submitted
in support of his motion showed that conditions had materially changed in Guyana.
Id. at 2-3; see 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
Specifically, the BIA found that the articles Dat submitted documented attacks
against two villages and several attacks against the police, but provided no clear
motive for those attacks. Id. at 2-3. Although the Guyanese president had
speculated that some attacks were intended to stir up racial tensions, other reports
suggested that the attacks were gang-related and based on personal vendettas. Id.
at 3. In sum, there was no evidence that the attacks were anything other than
criminal actions or that they were focused against Indo-Guyanese. Id. The BIA
further found that the articles demonstrated that tension between the Afro- and
Indo-Guyanese populations had existed for years. Because racial hostility in
Guyana “clearly pre-dated [Dat’s] hearing,” it did not constitute a “new” or
“changed” condition. Id. With respect to Dat’s request that the proceedings be
administratively closed, the BIA found that Dat “ha[d] an administratively final
order of removal, with no proceedings pending before either the Board or the
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Immigration Judge” and stated that it “will not reopen proceedings that are final
solely to administratively close them.” Id. at 2. The BIA denied Dat’s motion to
reopen as well as his requests for a stay of removal and administrative closure of
the proceedings. Id. at 3. This petition for review followed.
II. DISCUSSION
We review the BIA’s denial of a motion to reopen removal proceedings for
an abuse of discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir.
2009) (per curiam). Under this deferential standard, “[our] review is limited to
determining whether the BIA exercised its discretion in an arbitrary or capricious
manner.” Id. Motions to reopen are disfavored, especially in removal proceedings,
and thus the moving party bears a heavy burden. Id.
Dat argues that the BIA erred in failing to reopen the removal proceedings
because he has demonstrated “changed country conditions” and, alternatively,
because his marriage to a United States citizen entitles him to an adjustment of
status as determined by an IJ. We disagree.
As a threshold matter, Dat has cited no binding authority in support of his
argument that he is entitled to have his case reopened based upon his marriage and
subsequent application for adjustment of status. An IJ lacks jurisdiction to
adjudicate an adjustment of status claim filed by an arriving alien who is placed in
removal proceedings unless: (1) the alien filed the adjustment of status application
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with USCIS; (2) the alien left the United States and returned pursuant to a grant of
advance parole; (3) the alien’s adjustment of status was denied by USCIS; and (4)
the alien was placed in removal proceedings either upon his return to the United
States pursuant to the grant of advance parole or after USCIS denied the
application. 8 C.F.R. § 1245.2(a)(1)(ii) (2009). Dat has not shown that he meets
these requirements. Moreover, even assuming an IJ would have jurisdiction to
adjudicate Dat’s adjustment of status claim, we fail to see how that entitles him to a
reopening of his removal proceedings under 8 U.S.C. § 1229a(c)(7).
The BIA also did not abuse its discretion in finding that reopening was not
warranted based on changed circumstances. Although a motion to reopen must be
filed within ninety days after the final order of removal is entered, this time-bar
does not apply where the alien presents material evidence of changed country
conditions that “was not available and would not have been discovered or
presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). The
evidence Dat presented, which included articles reporting on a mass murder in a
largely Indian village, attacks against Indo-Guyanese, a gang attack on a police
station, and a general increase in crime, does not demonstrate heightened race-
based violence against Indo-Guyanese. As the BIA pointed out, the reports suggest
that the attacks were the product of generalized violence and were not focused
against the Indo-Guyanese. Moreover, none of the reports indicate that racial
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tensions between the Afro- and Indo-Guyanese are any worse now than they were
in 2006. In fact, the 2008 country report made no mention of race-related
persecution and noted that tensions between Indo- and Afro-Guyanese had
“diminished.” Id. at 72. In short, the documents Dat submitted in support of his
motion to reopen, though not previously available, reflect either no change, or
indeed some improvement, in racial and ethnic tensions in Guyana. Accordingly,
the BIA did not err in denying Dat’s motion to reopen removal proceedings based
on changed conditions in Guyana.
III. CONCLUSION
Dat petitions us for review of the BIA’s denial of his motion to reopen his
removal proceedings. For the foregoing reasons, we DENY the petition.
PETITION DENIED.
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