                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2008

Askander v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2291




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-2291


                        AMIR GIRGIS NAGUEB ASKANDER

                                                     Petitioner,

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                     Respondent.


                           On Petition for Review of an Order
                          of the Board of Immigration Appeals
                                   (No. A96 302 870)

                         Immigration Judge: Daniel A. Meisner
                                    ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 29, 2007


       Before: BARRY, FUENTES, Circuit Judges, and DIAMOND,* District Judge

                           (Opinion Filed: January 30, 2008)


                                       OPINION




   *
    The Honorable Paul S. Diamond, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
FUENTES, Circuit Judge

       Petitioner Amir Girgis Nagueb Askander, an Egyptian citizen, entered the United

States on August 21, 1994, as a non-immigrant visitor. In October 2003, Askander was

served with a Notice to Appear, which charged him with being an alien who had

remained in the United States without authorization in violation of 8 U.S.C. §

1227(a)(1)(B). Askander conceded removability, and subsequently applied for asylum,

withholding of removal, and relief under the United Nations Convention Against Torture

(“CAT”). His petition was based on his identification as a Coptic Christian in Egypt, a

predominantly Muslim country. Following a hearing on the Notice to Appear, the

immigration judge (the “IJ”) denied relief, and the Board of Immigration Appeals

(“BIA”) affirmed. Askander subsequently filed a motion with the BIA to reopen and

reconsider the IJ’s decision due to “changed circumstances” for Coptic Christians in

Egypt. The BIA denied that motion, and Askander filed a timely petition for review.

       We have jurisdiction pursuant to 8 U.S.C. § 1252, and we will deny the petition for

the reasons that follow.

                                             I.

       As we write primarily for the parties, we recount only those facts that are helpful

in our discussion of the case.

       Askander’s petition for asylum was originally denied because the IJ determined it

was not timely filed (within the statutory one-year period) pursuant to 8 U.S.C.

§1158(a)(2)(b), and that Aksander did not qualify for an exception to the statutory

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deadline. Nonetheless, the IJ also addressed the merits of Askander’s claims, and

determined that Askander could not qualify for asylum. He also denied withholding of

removal and CAT protection based on the following findings: (1) Askander had not

demonstrated that the threats he had received from Muslim extremists while living in

Egypt rose to the level of persecution; (2) the threats were perpetrated by non-

governmental actors (private citizens); (3) Askander’s family (who were also Coptic

Christians) had not been targeted; (4) Askander lived in Egypt for almost two years after

the last incident of harassment before leaving for the United States; and (5) Askander had

not demonstrated that he was unable to relocate within Egypt. The IJ also concluded that,

as a general matter, the situation had improved for Coptic Christians and that the

Egyptian government was more sensitive to their complaints of harassment. On appeal,

the BIA approved the IJ’s decision, agreeing both that the petition was untimely and that

Askander had failed to meet his burden to prove eligibility for asylum, withholding, and

CAT protection.

       Askander based his December 22, 2005 motion to reopen and reconsider the BIA’s

decision primarily on an argument that country conditions in Egypt have changed. To

that motion, Askander attached documentation detailing difficulties Coptic Christians

have encountered in Egypt, including a number of newspaper articles and an affidavit

from Dr. Paul Marshall, a research fellow at the Washington-based non-governmental

organization Freedom House.

       On March 23, 2006, the BIA issued a decision denying Askander’s motion to

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reopen and reconsider, stating that the “evidence does not show that the circumstances are

materially different for Coptic Christians in Egypt than they were when the respondent

presented his application before the [IJ].” (A-2.)

                                              II.

       This Court reviews the BIA’s denial of a motion to reopen and reconsider for

abuse of direction, affording “broad deference” to the original decision. Lu v. Ashcroft,

259 F.3d 127, 131 (3d Cir. 2001) (internal quotation marks omitted). We should reverse

the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v.

Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). The BIA may deny a motion to reopen and

reconsider for one of three reasons: (1) the movant has failed to establish a prima facie

case for the relief sought, (2) the movant has failed to introduce previously unavailable,

material evidence that justifies reopening, or (3) if the ultimate grant of relief is

discretionary, the BIA can simply determine that the movant is not entitled to the

discretionary grant of relief. See id. at 169-170. Moreover, pursuant to the BIA’s own

regulations, a motion to reopen will 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).

       On appeal, Askander challenges only the legal standard employed by the BIA,

charging that it “failed to evaluate [the] motion using the appropriate standard.” Pet. Br.

at 8. Askander argues that the BIA’s stated reason for denying Askander’s motion – that

the record does not indicate “that the circumstances are [currently] materially different for

                                               4
Coptic Christians” in contrast to what conditions were like when Askander first applied

for asylum – is improper because it does not fit within the “appropriate prima facia [sic]

case standard.” Id.

       Askander’s argument is without merit. As outlined in Sevoian and noted above,

whether a movant has established a prima facie case is only one of three reasons why the

BIA may properly deny a motion to reopen. 290 F.3d at 169-70. Here, citing to 8 C.F.R.

§ 1003.2(c), the BIA determined that Askander’s motion to reopen should not be granted

for one of the other three permissible reasons: because Askander failed to produce

material evidence of changed circumstances for Coptic Christians in Egypt.

Consequently, we cannot consider the BIA’s decision an abuse of discretion. See Caushi

v. Atty. Gen. of U.S., 436 F.3d 220, 231-32 (3d Cir. 2006).

       For the foregoing reasons, we deny Askander’s appeal and affirm the decision of

the BIA.




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