[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 4, 2007
No. 06-12114 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A95-220-997
ROMAN ASHNUROV,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
No. 06-12115
Non-Argument Calendar
________________________
BIA No. A95-220-998
VIRA KOSTINA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 4, 2007)
Before BLACK, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Vira Kostina, as lead petitioner for herself and her husband, Roman
Ashnurov, petitions for review of the decisions of the Board of Immigration
Appeals that denied her second motion to reconsider and her motion to reopen her
petition for asylum under the Immigration and Nationality Act. Kostina argues
that the denial of her motion to reopen by the BIA was arbitrary and capricious
because she demonstrated meaningful change in the country conditions of Ukraine
that support a well-founded fear of future persecution. Because Kostina makes no
argument with regard to her appeal of the denial of her motion to reconsider, that
issue is waived. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th
Cir. 2005).
“We review the BIA’s denial of a motion to reopen for abuse of discretion.
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.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (internal
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quotation marks and citations omitted). The BIA may grant a motion to reopen if
the movant presents new evidence that is material and was not available and could
not have been discovered or presented at the removal hearing. See 8 C.F.R.
§ 1003.2(c)(1). A petitioner is ordinarily permitted to file one motion to reopen
within 90 days of the date of the final order of removal, see 8 U.S.C.
§ 1229a(c)(7)(C)(i), but the time and numerical limitations do not apply to the
filing of a motion to reopen based on changed country conditions if supported by
evidence that is “material and was not available and would not have been
discovered or presented at the previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii);
see also 8 C.F.R. § 1003.2(c)(3)(ii).
Kostina argues that the country conditions in Ukraine have changed and that
there is increased persecution of ethnic minorities in Ukraine, but her evidence
failed to prove materially changed country conditions. Although more detailed,
Kostina’s evidence was substantially the same as the evidence presented to the
Immigration Judge during the asylum hearing. The discrimination alleged in the
evidence, while harassing, also did not rise to the level of persecution. See
Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000). The BIA did not abuse
its discretion when it denied the motion to reopen.
PETITION DENIED.
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