                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0376n.06

                                Nos. 16-4150/17-3346/17-3747


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                 FILED
                                                                                Jul 26, 2018
 REMON SAMIR WELSON,                                   )                   DEBORAH S. HUNT, Clerk
                                                       )
        Petitioner,                                    )
                                                       )
                                                              ON PETITION FOR REVIEW
 v.                                                    )
                                                              FROM THE UNITED STATES
                                                       )
                                                              BOARD OF IMMIGRATION
 JEFFERSON B. SESSIONS, III, Attorney General,         )
                                                              APPEALS
                                                       )
        Respondent.                                    )
                                                       )



BEFORE:       ROGERS and BUSH, Circuit Judges; WATSON, District Judge.*

       ROGERS, Circuit Judge. Remon Welson is a Coptic Christian, a member of a religious

group comprising roughly ten percent of Egypt’s population. In 2015, he traveled from Egypt to

the United States and sought asylum and withholding of removal on the basis of his Coptic

Christian religion. An immigration judge denied his applications, concluding that he was not

credible and that he had not demonstrated a well-founded fear of persecution in Egypt, a

precondition for either form of relief. Welson appealed to the Board of Immigration Appeals and

also filed numerous motions to have his proceedings remanded, reopened, or reconsidered. The

Board denied all these motions and denied relief. In this appeal, Welson principally argues that

the Board should not have denied his various motions to reopen or reconsider because they were




       * The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
Nos. 16-4150/17-3346/17-3747
Welson v. Sessions

supported by new evidence of violence against Egyptian Coptic Christians by the Islamic State of

Iraq and the Levant, and that this additional evidence demonstrated that Welson now qualifies for

relief from removal. However, because Welson’s additional evidence—mostly consisting of news

articles—did not show conditions that were materially different from those described in the

documents considered by the immigration judge, the Board did not abuse its discretion in denying

his motions to reopen or reconsider.

       Welson, a native and citizen of Egypt, arrived in the United States at Detroit Metropolitan

Airport on October 10, 2015. Immigration officials determined that he was not in possession of a

valid entry document, and the Government initiated removal proceedings on October 27, 2015.

Welson appeared before an immigration judge (“IJ”) with counsel on December 10, 2015, and

conceded removability. The IJ designated Egypt as the country of removal, and Welson filed an

application for asylum, withholding of removal, and protection under the U.N. Convention Against

Torture.

       An individual hearing was held before the IJ on February 2, 2016, and February 17, 2016.

Welson testified that he is a Coptic Christian who has lived his whole life in Sohag, Egypt, in a

home with his mother and younger brother. He testified that, in 2013, members of the Muslim

Brotherhood burned down the cathedral at which he worshipped; that unknown persons had twice

smashed his car window to remove a cross from within; and that the door to his home had been

marked with a symbol indicating that it would be burned (although to this day it has not actually

been the target of arson). The focus of Welson’s testimony, however, was an incident that occurred

on May 20, 2015. According to Welson’s testimony at the hearing, on that day he was returning

home from work when five Muslim men confronted him outside his home. The men told Welson

that he was not welcome in the area because he was Christian, and then assaulted him. Welson


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recognized one of his assailants, whom the others called “Mohammed,” as an attendee of the local

mosque. Once the assault ended, Welson went to the nearest police station to report the incident,

but the police declined to file a report until Welson obtained a medical report documenting his

injuries. Welson then went to the hospital, where he was treated and given a medical report. He

returned to the police station with the medical report, and the police then formally accepted

Welson’s complaint. Welson testified that he saw Mohammed again on the street one week after

the assault, and that Mohammed threatened him. After the assault, Welson became stressed and

afraid, and he decided to seek asylum in the United States. In October 2015, he flew to the United

States for that purpose.

       Welson’s aunt and uncle also testified at the individual hearing, as well as one of Welson’s

childhood friends who had been granted asylum in the U.S. due to an unrelated incident. All three

of these witnesses are Egyptian Coptic Christians who now reside in the U.S. They each testified

that they had recently traveled to Egypt but took precautions while there.

       The IJ denied Welson relief. First, the IJ determined that Welson was not credible,

reasoning that Welson’s account of the assault had “evolved over time.” In particular, the IJ noted

that key details of his story had changed from the initial account he gave to immigration officials

shortly after entering the U.S. to the testimony he gave at the hearing before the IJ. The IJ

concluded that this indicated embellishment.      Additionally, the IJ explained that Welson’s

credibility was damaged because Welson claimed to have brought relevant documents with him to

the U.S., such as the police report and medical records chronicling the assault, but Welson without




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explanation declined to submit these documents to the IJ.1 The IJ accordingly drew a “negative

inference” from Welson’s “failure to produce allegedly available corroborating evidence.”

       Because “[a]n adverse credibility determination is fatal to claims for asylum and relief from

removal,” Slyusar v. Holder, 740 F.3d 1068, 1072 (6th Cir. 2014), the IJ denied Welson’s

applications for relief. The IJ also concluded in the alternative that asylum should be denied

because Welson did not establish his eligibility for that form of relief. To be eligible for asylum,

an applicant must show that he qualifies as a “refugee” within the meaning of 8

U.S.C. § 1101(a)(42)(A). As relevant here, that provision defines a refugee as one with a “well-

founded fear of persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion” in his native country. If an applicant establishes that he has been

subject to persecution in the past, then it is rebuttably presumed that he has a well-founded fear of

persecution in the future. 8 C.F.R. § 1208.13(b)(1). Otherwise, the applicant must establish a

well-founded fear of future persecution, which he can do by, among other things, demonstrating

that there is a pattern or practice in his country of nationality of persecuting a covered group of

persons to which the applicant belongs. Id. § 1208.13(b)(2)(iii).

       Here, the IJ concluded that Welson neither established past persecution nor a well-founded

fear of future persecution. The IJ first determined that Welson’s “experiences in Egypt do not

amount to past persecution.” Second, the IJ determined that Welson did not show a well-founded

fear of future persecution because his “evidence does not establish a pattern or practice of

persecution against persons similarly situated in Egypt.” The IJ reasoned that “[a]lthough the news


       1
        Welson initially claimed that this evidence was taken from him by Government officials
and never returned, but the Government later informed the IJ that it had provided Welson with
copies of all the documents in its possession that it had received from Welson, and Welson’s
counsel acknowledged receipt of the same. Welson does not argue in this appeal that the
Government in fact failed to return any of his documents.
                                                 -4-
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articles provided by [Welson] show that Copts are targeted by Muslim extremists, they also

establish that the Egyptian government is taking steps to protect Coptic Christians.” (Internal

citation and quotation marks omitted.) The IJ acknowledged that the State Department’s 2014

International Religious Freedom Report, which Welson submitted in evidence, showed some

incidents “which would constitute persecution of Coptic Christians,” but the IJ reasoned that those

incidents involved Coptic Christians who were not similarly situated to Welson in relevant ways,

as Welson “is not a convert from Islam and does not claim to be politically active or particularly

vocal about the mistreatment he believes he has faced in Egypt.” The IJ further observed that

Egyptian president Abdel Fattah el-Sisi has made efforts to improve conditions for Coptic

Christians, and that, according to the State Department’s 2014 Human Rights Report on Egypt,

more Coptic Christians are being included in the Egyptian government. Finally, the IJ emphasized

that members of Welson’s family continue to live in Egypt unharmed, including his mother and

brother who live in the same house near which Welson was assaulted, and also that Welson’s three

witnesses had all recently traveled to Egypt without being harmed.2

       Welson appealed to the Board of Immigration Appeals (“BIA” or “Board”), and on

September 9, 2016, the Board upheld the IJ’s denial of relief. The BIA affirmed the IJ’s adverse

credibility finding and, in the alternative, agreed with the IJ that Welson had not demonstrated

either past persecution or a well-founded fear of future persecution. The BIA agreed with the IJ’s

reasoning that Welson’s “persecution claim is undercut by the fact that his mother and siblings



       2
          The IJ also denied Welson’s application for withholding of removal, reasoning that an
applicant for that form of relief must make an even more difficult showing than the one necessary
to obtain asylum, and because Welson did not qualify for asylum he necessarily did not qualify for
withholding of removal. See Koliada v. INS, 259 F.3d 482, 488–89 (6th Cir. 2001). In a footnote,
the IJ held that Welson had abandoned his claim for protection under the Convention Against
Torture because his counsel had expressly disclaimed that Welson was pursuing that form of relief.
                                                -5-
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Welson v. Sessions

continue to live in Egypt apparently without harm.” Along with his appeal, Welson also filed a

motion to remand in light of changed country conditions, based on news articles detailing

additional violence against Coptic Christians in Egypt. The BIA treated this as a motion to reopen

and denied it. The Board explained that, to prevail on such a motion, an applicant must establish

that if his proceedings were reopened “the new evidence offered would likely change the result in

the case.” See Matter of Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992). The news articles that

Welson submitted did not satisfy this standard, the Board explained, because they reported

incidents of violence “similar to those accounted for by the State Department reports cited by the

Immigration Judge,” and thus would not likely produce a different outcome if the case were

reopened.

       Welson thereafter filed a timely motion to reopen, supported by more news articles

allegedly showing worsened country conditions. On March 6, 2017, the Board denied this motion

as well. By regulation, a motion to reopen must be accompanied by evidence that 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). The Board reasoned that several of the articles Welson sought to introduce

predated the Board’s prior decision, and thus could not support a motion to reopen. Additionally,

Welson’s evidence “reflect[ed] conditions similar to those documents relied on by the Immigration

Judge . . . as well as [those documents supporting] his previous motion to remand.” In particular,

Welson submitted a news article discussing a January 2017 Executive Order issued by President

Donald Trump that temporarily suspended entry into the United States from several predominantly

Muslim nations (Egypt was not one of them), but gave preferential treatment to Christians seeking

to enter the U.S. from those nations. Welson argued that this was relevant because it demonstrated

a new government policy of prioritizing the protection of Christians living in certain majority-


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Muslim countries. The BIA rejected this argument, reasoning that the article did not identify any

“law or other material change in policy which would affect [the Board’s] previous decision.”

       Welson then filed a timely motion to reconsider the BIA’s denial of his motion to reopen,

along with supplemental filings further seeking to reopen his removal proceedings. On June 14,

2017, the Board denied these motions as well. A motion to reconsider must “specify[] . . . errors

of fact or law in the prior Board decision,” id. § 1003.2(b)(1), and the Board concluded that

Welson’s motion to reconsider failed because it did not do so; it identified no error of law or fact

in the Board’s prior decisions, nor any argument raised previously that the Board had overlooked.

As for Welson’s latest motion to reopen, the Board reasoned that it was time- and number-barred,

see id. § 1003.2(c)(2), and so the Board could not consider it unless Welson showed changed

country circumstances, see id. § 1003.2(c)(3)(ii). Welson based the motion to reopen on an article

describing the April 2017 Palm Sunday Coptic church bombings in Egypt, and another article

detailing a May 2017 incident in which gunmen opened fire on vehicles transporting Coptic

Christians in Southern Egypt. The Board concluded that this evidence was not sufficient because

it merely showed “a continuation of the strife and violence considered previously in this matter,

rather than a material change in relevant country conditions.” Moreover, the Board noted that

Welson’s family, along with millions of other Coptic Christians, continues to live in Egypt, and

that the evidence submitted did not suggest that the Egyptian Government was complicit in these

acts of violence.

       Welson filed three petitions for review in this court, one for each of the BIA’s decisions.

On September 25, 2017, we ordered the three cases to be consolidated for review.

       Welson offers a potpourri of arguments as to why the BIA’s various decisions were in

error. However, his arguments challenge only the BIA’s denials of his numerous motions to


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Welson v. Sessions

reopen or reconsider (including his motion to remand, which the BIA treated as a motion to

reopen).3 He does not contest the BIA’s affirmance of the IJ’s adverse credibility finding, or the

BIA’s determination in its first decision that, based on the evidence then before the IJ, Welson

failed to demonstrate past persecution or a well-founded fear of future persecution. For the reasons

that follow, each of Welson’s arguments fails.4

       Welson first argues that the BIA erred in all three of its decisions by denying his various

motions to reopen or reconsider, because he submitted evidence sufficient to justify reopening in

the form of documents describing an intensification of violence against Coptic Christians in Egypt,

particularly violence perpetrated by the Islamic State of Iraq and the Levant (“ISIL”). However,

this argument is unpersuasive. “The burden for a motion to reopen is a heavy one, and the movant

must show ‘that if proceedings before the immigration judge were reopened . . . the new evidence

offered would likely change the result of the case.’” Reyna v. Lynch, 631 F. App’x 366, 371 (6th

Cir. 2015) (ellipsis in original) (quoting Coelho, 20 I. & N. Dec. at 473). In other words, it is

Welson’s obligation to offer evidence that establishes a prima facie case for relief. See Trujillo

Diaz v. Sessions, 880 F.3d 244, 249–50 (6th Cir. 2018). Welson has not carried this burden,

because—as the Board reasoned—the evidence that Welson submitted along with his numerous

motions to reopen or reconsider demonstrates conditions in Egypt that are not materially different


       3
         A motion styled as a “motion to remand” may permissibly be treated as a motion to
reopen. See Bi Feng Liu v. Holder, 560 F.3d 485, 489 n.4 (6th Cir. 2009). Welson does not argue
on appeal that his motion to remand was inappropriately treated as a motion to reopen.
       4
          In his principal brief, Welson moved this court to take judicial notice of a news article
attached to his brief which was not submitted to the BIA. We deny the motion because we are
“statutorily required to ‘decide the petition [for review] only on the administrative record on which
the order of removal is based.’” Barakat v. Holder, 621 F.3d 398, 406 (6th Cir. 2010) (brackets
in original) (quoting 8 U.S.C. § 1252(b)(4)(A)). Moreover, this new article would not be relevant
to any of the issues on appeal. Because the BIA never considered this article, the article is not
relevant to the question of whether the BIA abused its discretion in denying Welson’s motions to
reopen.
                                                  -8-
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from those reflected in the documents originally considered by the IJ. Therefore, he has not shown

that this new evidence “would likely change the result in the case.” See Coelho, 20 I. & N. Dec.

at 473.

          Welson submitted numerous articles and reports along with his motions to reopen or

reconsider. He contends that these articles and reports show that he would at least qualify for

asylum if the case were reopened, because they demonstrate escalating violence against Coptic

Christians such that he would have a well-founded fear of persecution in Egypt on the basis of his

religion. However, these additional documents generally depict conditions that are similar to those

described in the evidence before the IJ. The IJ’s opinion explicitly acknowledged that “the news

articles provided by [Welson] show that Copts are targeted by ‘Muslim extremists,’” but that the

articles also showed that the Egyptian government was making efforts to protect Coptic Christians.

The IJ’s opinion cited trial Exhibit 3, which included numerous news accounts of violence

committed against Coptic Christians by Muslim extremists. For instance, Exhibit 3 contained a

BBC article entitled “Lives of fear for Egypt’s Christians,” which documented an incident in

October 2013 in which gunmen opened fire outside a Coptic church in Cairo, killing four people.

The article also described the burning of a Coptic church by a mob of Islamic extremists. Another

article in Exhibit 3 stated that “Islamic extremists often attack Egyptian churches during Christian

holidays,” and also recounted an incident in which a Coptic Christian was pulled out of her car

and killed after parking outside a church. The State Department’s 2014 Human Rights Report,

also included in Exhibit 3, added that “[t]errorist groups, including [a group affiliated with ISIL],

conducted deadly attacks on government, civilian, and security targets throughout the country,

including schools, places of worship, and public transportation.”




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       In support of his motions to reopen, Welson chiefly relies on articles describing various

recent acts of terrorism perpetrated by ISIL, including: the December 2016 bombing of a Coptic

cathedral in Cairo; the April 2017 bombing of two Coptic churches, both in Northern Egypt, on

Palm Sunday; and a May 2017 incident in Southern Egypt where gunmen fired on vehicles

carrying Coptic Christians. However, as the BIA reasoned, these articles describe events which,

while indisputably terrible and tragic, are nevertheless similar to those conditions considered by

the IJ at Welson’s individual hearing. Moreover, none of the additional reports and articles

disturbs a key portion of the IJ’s reasoning—namely, that Welson’s family continues to live in

Sohag, Egypt, unharmed, and that the Egyptian government under the leadership of President el-

Sisi has undertaken to improve conditions for Coptic Christians. These new articles accordingly

do not show that if the case were reopened Welson would likely prevail on his asylum claim. What

is more, the BIA’s denial of a motion to reopen is reviewed only for abuse of discretion. Kukalo

v. Holder, 744 F.3d 395, 402 (6th Cir. 2011). As we have explained:

       the BIA has broad discretion in deciding whether to grant or deny a motion to
       reopen . . . . A denial of a motion to reopen will constitute an abuse of discretion if
       the denial “was made without a rational explanation, inexplicably departed from
       established policies, or rested on an impermissible basis such as invidious
       discrimination against a particular race or group.”

Id. (quoting Balani v. INS, 699 F.2d 1157, 1161 (6th Cir. 1982)). In light of the foregoing analysis,

the BIA did not abuse its discretion in denying Welson’s various motions to reopen.

       Welson argues that our decision in Mandebvu v. Holder, 755 F.3d 417 (6th Cir. 2014),

compels a different result, but Mandebvu is inapposite. The timeliness issue in that case related to

the alien’s initial asylum application, and not to a motion to reopen or reconsider a removal order.

Untimeliness in applying for asylum may be excused by showing “the existence of changed

circumstances which materially affect the applicant’s eligibility for asylum.” See id. at 424


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Welson v. Sessions

(quoting 8 U.S.C. § 1158(a)(2)(D)). We held that, in order to show changed circumstances, an

applicant need not show that he “would not have been eligible for asylum had he applied before

the change in country conditions.” See id. at 424–28. In other words, we concluded that an

applicant might demonstrate changed circumstances even if the country conditions were bad

enough to warrant a grant of asylum before the change in circumstances, and even worse

afterward. This makes sense when the underlying concern is the applicant’s degree of incentive

to apply for asylum in the first place. But Mandebvu’s holding is not relevant here, because the

BIA did not deny Welson’s motions to reopen on the basis that he qualified for asylum both before

and afterward. To the contrary, the BIA reasoned that Welson did not qualify either before his

motions to reopen or afterward because Welson’s “new” evidence was simply more of the same.

       Welson also argues that the Board erred in concluding that the documents submitted with

his motions to reopen reflected conditions similar to those described in the documents before the

IJ because, according to Welson, “ISIS and ISIL were not present in Egypt at the time of [his]

individual hearing,” and therefore his additional evidence documenting ISIL’s attacks must be

new. But this argument fails because the record before the IJ included evidence of ISIL’s activities

in Egypt. As previously explained, the State Department’s 2014 Human Rights Report specifically

stated that an ISIL-affiliated terrorist group “conducted deadly attacks on government, civilian,

and security targets throughout the country, including schools, places of worship, and public

transportation.” Welson notes that the record before the IJ included an article discussing the

murder of 21 Egyptian Coptic Christians who were abducted and beheaded in Libya by members

of ISIL. Based on this article, Welson argues that the IJ considered evidence of ISIL’s activities

only in Libya, and that therefore Welson’s evidence of ISIL’s activities in Egypt demonstrated

conditions different from those considered by the IJ. But, as just discussed, it is not true that the


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Welson v. Sessions

IJ only considered evidence of ISIL’s activities in Libya. There was also evidence of ISIL’s attacks

in Egypt, and therefore this argument lacks merit.5

       Welson further contends that the Board erred in concluding that he did not document a

material policy change when he submitted a news article discussing the Trump administration’s

policy of giving preferential treatment to Christians seeking to enter the U.S. from majority-

Muslim countries covered by the entry ban. But the Board correctly reasoned that this was not a

“material change in policy which would affect [the Board’s] previous decision” because the article

did not discuss any change to the general asylum standards under which Welson’s claim was

previously denied.

       Next, Welson takes issue with the BIA’s statement in its first decision that the additional

articles he submitted “generally reflect incidents of civil unrest and violence similar to those

accounted for by the State Department reports cited by the Immigration Judge.” Welson cites a

host of out-of-circuit cases for the proposition that general civil strife does not preclude asylum

relief, and then attempts to argue that the BIA denied his motion to remand solely on the basis that

there were “incidents of civil unrest and violence” in Egypt. But that is clearly not what the BIA

did. Rather, the BIA denied Welson’s motion to remand because the articles he submitted

described events “similar to those accounted for” by the materials before the IJ, not merely because

the articles described general civil strife in Egypt. Accordingly, this argument fails.6


       5
          Relatedly, Welson argues in his reply brief that we should review the BIA’s denial of his
motions to reopen de novo, rather than under the abuse-of-discretion standard, to the extent that
he has presented a question of law. That question of law, he contends, is whether the BIA erred
by equating evidence of ISIL’s activities in Libya to evidence of ISIL’s activities in Egypt. But
for the reasons just discussed, even under de novo review this argument fails because Welson’s
factual premise—that there was no evidence of ISIL in Egypt before the IJ—is incorrect.
       6
         In the heading of Part G of Welson’s argument, his brief states that the BIA’s third
decision erred “in placing an additional requirement that the government of Egypt be complicit in
the persecution of Christians.” However, his brief does not elaborate at all on this point in the
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       Welson also challenges the BIA’s second decision on the basis that it did not apply the

correct standard for evaluating a motion to reopen. He points to the BIA’s statement that “a party

who seeks to reopen proceedings to pursue relief bears a ‘heavy burden’ of demonstrating that if

the proceedings were reopened, the new evidence presented would likely change the result in the

case” (quoting Coelho, 20 I. & N. Dec. at 473). He argues that this is the wrong standard because,

to prevail on an asylum claim, an applicant need only show a well-founded fear of persecution,

which the Supreme Court has described as requiring only a ten-percent likelihood of persecution.

See INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987). Welson argues that a “heavy burden” is

incompatible with the ten-percent-chance standard defined in Cardoza-Fonseca, and therefore he

claims that the BIA likely employed the higher standard for withholding of removal, which

requires an applicant to demonstrate that persecution is more likely than not to occur. See INS v.

Stevic, 467 U.S. 407, 424 (1984). We have already rejected this precise argument, made by the

same attorneys, in Reyna:

               De La Cruz’s remaining argument with respect to the absence of a prima
       facie asylum case is that the BIA applied the wrong standard. In this regard, De La
       Cruz argues that the BIA improperly applied a 51% burden of proof to De La Cruz’s
       fear of persecution, rather than a 10% burden. This argument is without merit. The
       burden for a motion to reopen is a heavy one, and the movant must show “that if
       proceedings before the immigration judge were reopened . . . the new evidence
       offered would likely change the result of the case.” Matter of Coelho, 20 I. & N.
       Dec. 464, 473 (BIA 1992). This is the burden that the BIA applied to De La Cruz’s
       motion to reopen. De La Cruz’s argument conflates the lower burden to be applied
       in an asylum determination—“a well-founded fear of persecution,” 8 C.F.R.
       § 208.13(b)(2)—with the burden applied to a motion to reopen. In the context of a
       motion to reopen, De La Cruz had a heavy burden to show that the new evidence
       offered regarding his fear of persecution would likely change the result if the case
       were reopened before the IJ.




body of the argument. Therefore, this argument is forfeited. See Russ v. Memphis Light Gas &
Water Div., 720 F. App’x 229, 239 (6th Cir. 2017).
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Welson v. Sessions

631 F. App’x at 371. This reasoning applies equally to Welson’s argument and explains why it is

without merit.

       Finally, Welson contends that the BIA’s third decision was flawed because, in setting out

the standard of review for a time- or number-barred motion to reopen, the BIA stated that Welson

had to “make a showing that he faces a threat of individual persecution.” (Emphasis added.) To

support this statement, the BIA cited our decision in Harchenko v. INS, in which we said:

       As we have previously noted, an alien filing a motion to reopen based on changed
       country conditions “cannot rely on speculative conclusions or mere assertions of
       fear of possible persecution, but instead must offer reasonably specific information
       showing a real threat of individual persecution.” Dokic v. INS, No. 92-3592, 1993
       WL 265166, *5 (6th Cir. July 15, 1993) (citing Blanco-Comarribas v. INS, 830
       F.2d 1039, 1041–42 (9th Cir. 1987)). “The feared persecution must relate to the
       alien individually, not to the population generally.” Id.

379 F.3d 405, 410 (6th Cir. 2004). Welson argues that both the BIA’s statement in this case and

our decision in Harchenko misstate the law, and that they are inconsistent with precedent which

holds that an alien may establish a well-founded fear of persecution based on what has happened

to other similarly situated people in his native country. See, e.g., Perkovic v. INS, 33 F.3d 615,

621 (6th Cir. 1994) (quoting Matter of Mogharrabi, 19 I. & N. Dec. 439, 446 (BIA 1987)). But

Welson’s argument is based on a misreading of Harchenko. Harchenko does not say that an alien

cannot establish a well-founded fear of persecution by reference to the experiences of similarly

situated persons. Rather, Harchenko says only that an alien must link the threat of persecution to

the particular group of which the alien claims to be a member rather than the population at large;

in other words, “[t]he feared persecution must relate to the alien individually, not to the population

generally,” Harchenko, 379 F.3d at 410 (quoting Dokic, 1993 WL 265166, at *5). Thus, although

Welson is correct to the extent he notes that an alien can demonstrate a well-founded fear of

persecution by showing either (1) that he will be singled out individually for persecution, or (2) that


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there is a pattern or practice of persecution against a group of which he is a member, see

8 CFR § 1208.13(b)(2)(iii), he is not correct in asserting that Harchenko, or the BIA’s statement

in this case based on Harchenko, is inconsistent with this proposition.7 Moreover, even if the

BIA’s statement had been erroneous, it was harmless. The BIA denied Welson’s motion to reopen

not because he failed to show a threat of individual persecution, but rather because his new

evidence indicated “a continuation of the strife and violence considered previously in this matter,

rather than a material change in relevant country conditions.”8

       For these reasons, we deny Welson’s petition for review.




       7
         Welson also argues that, to the extent Harchenko and Dokic are inconsistent, we are
bound to follow Dokic as the earlier precedent. First, this argument is wrong because, as just
explained, Welson misunderstands Harchenko, and that decision is consistent with Dokic. But
even if the two decisions were inconsistent, we would be bound to follow Harchenko and not
Dokic because Dokic is an unpublished decision. See Thomas v. Eby, 481 F.3d 434, 441 (6th Cir.
2007).
       8
          For the first time in his reply brief, Welson argues that he was denied due process when
the BIA stated in its third decision that “[m]illions of Coptic Christians (including [Welson’s]
family) continue to live in Egypt,” because, in Welson’s view, this shows that the BIA denied his
motion to reopen based on “floodgate” concerns that all of those Coptic Christians would be
eligible for asylum if Welson’s application were granted. This argument is forfeited because
Welson failed to raise it in his opening brief. See Marks v. Newcourt Credit Grp., Inc., 342 F.3d
444, 462 (6th Cir. 2003). Even if it were not forfeited, the argument would fail because that is
obviously not what the BIA meant when it referred to the millions of Coptic Christians living in
Egypt.
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