                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                         April 23, 2004
                                    FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                        _________________                                   Clerk
                                             No. 03-60674

                                        (Summary Calendar)
                                        _________________


ODILIA SWIRI,


                               Petitioner,

versus


JOHN ASHCROFT, U.S. ATTORNEY GENERAL,


                               Respondent.



                               Petition for Review of an Order of the
                                   Board of Immigration Appeals
                                       BIA No. A76 925 019



Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

         Odilia Swiri petitions this court to review the decision of the Board of Immigration Appeals

(“BIA”) denying her motion to reopen removal proceedings. Swiri argues that the BIA abused its




         *
          Pursuant to 5th Cir. R. 47.5, the court has determined t hat this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
discretion in denying her motion to reopen to apply for discretionary relief on the ground that Swiri

previously had an opportunity to apply for the relief. She further argues that the BIA abused its

discret ion in determining that she failed to present prima facie evidence to support her motion to

reopen to apply for withholding of removal and relief under the Convention Against Torture

(“CAT”).

        A motion to reopen for “the purpose of affording the alien an opportunity to apply for any

form of discretionary relief” shall not be granted if “it appears that the alien’s right to apply for such

relief was fully explained to him or her and an opportunity to apply was therefore afforded at the

former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent

to the hearing.” 8 C.F.R. §1002.3(c)(1). The BIA denied Swiri’s motion to reopen to apply for the

discretionary relief of asylum based upon her fear that her daughter would be subjected to female

genital mutilation (“FGM”) or that she would be persecuted due to her opposition to FGM on her

daughter because she previously had an opportunity to apply for such relief. Swiri acknowledges that

she gave birth to her daughter prior to the immigration judge’s decision on her initial asylum

application, thus the relief she seeks is not on the basis of circumstances that have arisen subsequent

to the hearing. Swiri claims, however, that her right to apply for asylum based upon FGM was not

explained to her. However, Swiri acknowledges that she never disclosed to her attorney the facts

concerning the claim she now seeks to raise. Moreover, Swiri was only entitled to have her right to

apply for asylum explained to her, she was not entitled to have every factual basis for asserting that

right explained to her. Thus, the BIA did not abuse its discretion in denying her motion to reopen

to apply for asylum.

        Swiri has also failed to show that the BIA’s denial of her motion to reopen to apply for


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withholding of removal was an abuse of discretion. See INS v. Abudu, 485 U.S. 94, 106 (1988). A

motion to reopen shall not be granted unless the 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). Here, the evidence Swiri sought to introduce was known to her during her former

hearing. Accordingly, the BIA did not abuse its discretion in denying the motion to reopen. See

Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 756 n.7 (1986),

rev’d on other grounds (reviewing court may uphold agency decision on unarticulated grounds if

result is clear).

        The BIA also denied Swiri’s motion to reopen her petition for withholding of removal to

apply for relief under CAT because she did not present prima facie evidence that she was entitled to

such relief. Swiri specifically failed to establish that it would be unreasonable to relocate to an area

of Cameroon in which FGM is not practiced. After reviewing the evidence that Swiri submitted in

support of her claim that relocation would be unreasonable, we conclude that the BIA did not abuse

its discretion in determining that it was not unreasonable for Swiri to relocate. See 8 C.F.R. §

1208.16. The BIA did not abuse its discretion in denying Swiri’s motion to reopen to apply for

withholding of removal under CAT.

        AFFIRMED.




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