[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 10, 2007
No. 06-12276 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A96-017-506
XHEVAT GASHI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 10, 2007)
Before TJOFLAT, HULL and FAY, Circuit Judges.
PER CURIAM:
Xhevat Gashi, a native and citizen of Kosovo, through counsel, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision denying his motion
to reopen his proceedings regarding his application for asylum, filed pursuant to 8
U.S.C. §§ 1158, 1231. Gashi argues that the BIA should have granted his motion
to reopen because he presented new and material evidence of changed country
conditions in Kosovo that supported his application for asylum. For the reasons set
forth more fully below, we deny Gashi’s petition for review.
Gashi arrived in the United States under the visa waiver program and was
referred to the Immigration Judge (“IJ”) for asylum-only proceedings. Gashi filed
an application for asylum, alleging that he was persecuted in Kosovo on account of
his nationality as an ethnic Albanian and his status as a member of the Democratic
League of Kosovo (“LDK”). The IJ denied Gashi’s applications for relief, finding
that Gashi had not met his burden of establishing that he suffered past persecution
in Kosovo or had a well-founded fear of persecution there on account of one of the
protected grounds. Specifically, the IJ concluded that Gashi had not presented a
credible claim that supported his applications for relief. Gashi appealed to the
BIA, which affirmed the IJ’s denial of Gashi’s applications for relief on November
15, 2005. The BIA found that the IJ’s adverse credibility determination was
sufficiently supported by the record. Gashi then petitioned this Court for review of
the BIA’s and IJ’s decisions, but we dismissed the petition as untimely.
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On February 7, 2006, Gashi filed before the BIA a motion to reopen his
asylum-only proceedings, pursuant to 8 C.F.R. § 1003.2(c), on the grounds that he
had new evidence that was material and previously unavailable and that there were
changed country conditions in his designated country of removal. In his motion,
Gashi contended that he had new evidence in the form of affidavits from witnesses
that were previously unavailable and would corroborate the persecution he suffered
in Kosovo. He also argued that the death of the President of the LDK changed the
country conditions in Kosovo such that, if Gashi were returned there, he would
“surely” be persecuted by opposition parties that were beyond the control of the
government.
Gashi submitted eight exhibits in support of his motion to reopen. Five of
Gashi’s exhibits were affidavits from himself, his wife, and his friends from
Kosovo concerning the persecution that Gashi suffered while he was in Kosovo.
Gashi claimed that his remaining three exhibits supported his assertions regarding
the changed country conditions in Kosovo. First, Gashi submitted a biography of
Ibrahim Rugova from the Wikipedia1 website, which indicated that Rugova was
the president of Kosovo and the LDK and had died on January 21, 2006. Second,
Gashi included an article from MSNBC.com, entitled “Kosovo President Ibrahim
1
Wikipedia is a free internet encyclopedia that is collaboratively written by its readers
and can be edited by anyone. See http://en.wikipedia.org/wiki/Wikipedia:Introduction.
3
Rugova dead at 61: Icon of ethnic Albanian drive to win independence had lung
cancer.” The article indicated that Rugova’s death left “a leadership vacuum at the
most sensitive time since the Kosovo war ended in 1999” and that the government
had “expressed fears that Rugova’s successor might not share his commitment to
nonviolence.” It further stated that ethnic Albanians were a 90 percent majority in
Kosovo and that the United Nations Secretary-General Kofi Annan believed that
Rugova’s death would not disrupt Kosovo’s drive for independence. Lastly, Gashi
submitted an article from USATODAY.com, entitled “Kosovo President Ibrahim
Rugova Dies,” which included similar information as that in the MSNBC.com
article.
In reviewing Gashi’s motion to reopen, the BIA found that Gashi failed to
establish that the affidavits he submitted were previously unavailable. The BIA
determined, however, that, even considering the statements in the affidavits, they
did not contain sufficient factual detail to establish that the IJ clearly erred in its
adverse credibility finding. With regard to the news articles that Gashi submitted,
the BIA found that they did “not establish a material change in country conditions
or that [Gashi] has a reasonable well-founded fear of return to Kosovo.” The BIA
thus denied Gashi’s motion to reopen, concluding that Gashi did not present
sufficient evidence to warrant reopening his proceedings.
On appeal, Gashi argues that the BIA abused its discretion in denying his
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motion to reopen because the BIA did not specify why it found that his evidence of
changed country conditions did not warrant a reopening. Gashi contends that the
BIA did not consider all of the evidence that he presented regarding the changed
conditions in Kosovo. He further argues that his new evidence of changed country
conditions was crucial to his claims because it contradicted the IJ’s finding, in his
original proceeding, that Gashi failed to show that he could not have sought help
from the LDK to avoid persecution.
“We review the BIA’s denial of a motion to reopen for an abuse of
discretion.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). “Our
review is limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Id. (quotation omitted).
Gashi filed his motion to reopen based upon changed country conditions and
pursuant to 8 C.F.R. § 1003.2(c), which states that such a motion “shall not be
granted unless it appears to the Board that evidence sought to be offered is material
and was not available and could not have been discovered or presented at the
former hearing.” 8 C.F.R. § 1003.2(c)(1); see also 8 C.F.R. § 1003.2(c)(3)(ii)
(indicating that an alien may file a motion to reopen based upon changed country
conditions in the alien’s country of nationality). Moreover, the BIA “has
discretion to deny a motion to reopen even if the party moving has made out a
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prima facie case for relief.” 8 C.F.R. § 1003.2(a). We have previously held that:
[a]t a minimum, there are at least three independent grounds upon
which [the BIA] may deny a motion to reopen: 1) failure to establish a
prima facie case; 2) failure to introduce evidence that was material
and previously unavailable; and 3) a determination that despite the
alien’s statutory eligibility for relief, he or she is not entitled to a
favorable exercise of discretion.
Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001).
As Gashi indicated before this Court and the BIA, he sought to reopen his
asylum-only proceedings based upon changed country conditions in Kosovo. An
asylum applicant can establish a well-founded fear of future persecution by
presenting “specific, detailed facts showing a good reason that he or she will be
singled out for persecution on account of” the statutorily listed factor. Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.2004) (emphasis in original)
(quotation omitted). Alternatively, an applicant can also establish a well-founded
fear of persecution, without showing that he would be singled out for persecution,
if the applicant establishes that there is a pattern or practice of persecution of
persons similarly situated to the applicant on account of their race, religion,
nationality, membership in a particular social group, or political opinion. 8 C.F.R.
§ 208.13(b)(2)(iii).
As an initial matter, review of Gashi’s appellate brief indicates that he does
not challenge the BIA’s finding that the affidavits Gashi submitted in support of
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his motion to reopen were (1) not previously unavailable, and (2) even if they
were, they did not establish that the IJ clearly erred in its adverse credibility
finding. Gashi argues before this Court only that his motion to reopen was timely
and that the BIA erred in its finding with regard to his evidence of changed country
conditions. Accordingly, Gashi has abandoned any argument that the affidavits
warranted a reopening of his asylum-only proceedings. See Mendoza v. U.S. Att’y
Gen., 327 F.3d 1283, 1286 n.3 (11th Cir. 2003) (stating that an issue not raised on
appeal is abandoned).
Concerning Gashi’s claim regarding changed country conditions, the BIA
did not abuse its discretion by denying Gashi’s motion to reopen because the
documentary evidence presented in support of his motion did not establish a
material change in country conditions in Kosovo that would have made Gashi
eligible for asylum relief. See 8 C.F.R. § 1003.2(c)(1). Although Gashi claims
that Rugova’s death so changed the country conditions in Kosovo to the extent that
Gashi was now eligible for asylum relief, the news articles are not probative of his
claims because they showed no incidents of violence against ethnic Albanians.
Rather, the articles referred only to the possibility that Rugova’s successor “might
not share his commitment to nonviolence.” In addition to stating that possibility,
one article indicated that ethnic Albanians were a 90 percent majority in Kosovo
and that the United Nations Secretary-General Kofi Annan believed that Rugova’s
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death would not disrupt Kosovo’s drive for independence. The articles therefore
do not indicate that there is a pattern or practice in Kosovo of persecuting ethnic
Albanians or that Gashi would be singled out for persecution on account of his
status as an ethnic Albanian. See 8 C.F.R. § 208.13(b)(2)(iii); Sepulveda, 401 F.3d
at 1231. Thus, the articles do not support Gashi’s fear of returning to Kosovo.
Moreover, to the extent that Gashi claims that the BIA did not address all of
his evidence of changed country conditions or provide a reason for its decision,
that argument is without merit because (1) the BIA noted that Gashi had submitted
articles regarding Rugova’s death, but that those articles did not establish a
material change in country conditions or that Gashi had a well-founded fear of
persecution if returned to Kosovo, and (2) the BIA referenced 8 C.F.R. § 1003.2,
which requires that a motion to reopen shall not be granted unless the evidence
sought to be offered is material. See Osuchukwu v. INS, 744 F.2d 1136, 1142-43
(5th Cir.1984) (explaining that the BIA “has no duty to write an exegesis on every
contention. What is required is merely that it consider the issues raised, and
announce its decision in terms sufficient to enable a reviewing court to perceive
that it has heard and thought and not merely reacted”). Accordingly, the BIA did
not abuse its discretion in denying Gashi’s motion to reopen, and, thus, his petition
for review is
DENIED.
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