NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1060n.06
No. 11-4072 FILED
Oct 09, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
WESAM MICHIEL YOUSIF, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
)
BEFORE: SILER, COLE, and SUTTON, Circuit Judges.
PER CURIAM. Wesam Michiel Yousif, a citizen of Iraq, petitions for review of an order
of the Board of Immigration Appeals denying his motion to reopen his removal proceeding.
Yousif was born in 1974, entered this country in 2000, and applied for asylum, withholding
of removal, and protection under the Convention Against Torture. He claimed to have been
persecuted and to fear future persecution in Iraq because he is a practicing Chaldean Christian.
Yousif testified before an immigration judge (IJ) that he had been arrested and detained on
three occasions in Iraq. First, he was accused of having falsified papers allowing him to take leave
from military service and was briefly detained by military authorities. Second, he alleged that he was
arrested and charged with smuggling weapons in a case of mistaken identity. Only the third of the
alleged arrests was related to Yousif’s claim of religious persecution. He claimed that he had been
detained by military authorities for arguing with his superior officer over whether he could take leave
to spend a Christian holiday with his family. The IJ found that Yousif’s claim lacked credibility
No. 11-4072
Yousif v. Holder
because he lacked basic knowledge about Christianity such as when Easter and Christmas are
celebrated and what those holidays represent. Yousif also failed to present any corroboration beyond
his cousin’s testimony. Therefore, the IJ denied all relief.
Although the government prevailed, it appealed the IJ’s decision to the Board of Immigration
Appeals (BIA), arguing that the IJ erred in failing to deny Yousif’s application on the additional
ground that he participated in persecuting Kurds during his military service. The BIA concluded that
it did not need to resolve this issue, as Yousif’s application for relief had been denied. Therefore,
the appeal was dismissed.
Approximately six months later, Yousif moved to reopen the proceeding, arguing that
conditions in Iraq had worsened for Christians. He also again presented a copy of a document that
purported to show that he had been baptized as an infant. He also presented his parents’ and sister’s
baptism documents, which he claimed were unavailable at the time of his initial hearing. The BIA
found that the new evidence of worsening conditions for Christians in Iraq was not material, as
Yousif’s application had been denied based on his lack of credibility. The motion to reopen was
therefore denied. Yousif petitioned this court for review. We granted his motion for a stay of
removal pending this decision.
We review the denial of a motion to reopen for an abuse of discretion. Haddad v. Gonzales,
437 F.3d 515, 517 (6th Cir. 2006). An abuse of discretion will be found where the denial is without
rational explanation, departs from established policies, or is based on discrimination. Id.
There is no time limit for filing a motion to reopen based on changed country conditions.
8 C.F.R. § 1003.2(c)(3)(ii). Therefore, this motion to reopen was timely, as it contained an argument
that conditions in Iraq were worsening for Christians. However, a motion to reopen must be based
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Yousif v. Holder
on material evidence. Allabani v. Gonzales, 402 F.3d 668, 675-76 (6th Cir. 2005). Here, the BIA
properly concluded that evidence of worsening conditions for Christians in Iraq was not material
where the IJ had concluded that Yousif had not credibly established that he was a practicing
Christian, and Yousif had not appealed that decision. See Sako v. Gonzales, 434 F.3d 857, 866 (6th
Cir. 2006). Moreover, the additional documents presented in the motion were insufficient to
overcome the IJ’s adverse credibility finding.
The BIA explained its denial of the motion to reopen, noting that Yousif had not presented
any material evidence. Yousif has shown no departure from established policies or discriminatory
basis for the denial, and, therefore, no abuse of discretion is apparent. The petition for review is
denied.
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