         08-5076-ag
         Zheliazouski v. Holder
                                                                                       BIA
                                                                               A097-305-222
                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 3 rd day of February, two thousand nine.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                BARRINGTON D. PARKER,
 9                GERARD E. LYNCH,
10                        Circuit Judges.
11       ______________________________________
12
13       ALEH ZHELIAZOUSKI,
14                Petitioner,
15                                                              08-5076-ag
16                            v.                                NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL, *
20                Respondent.
21
22       ______________________________________




                       *
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:           Alexander J. Segal, The Law Offices
 2                             of Grinberg & Segal, New York, New
 3                             York.
 4
 5   FOR RESPONDENT:           Tony West, Assistant Attorney
 6                             General; Carl H. McIntyre, Jr.,
 7                             Assistant Director; Francis W.
 8                             Fraser, Senior Litigation Counsel,
 9                             Office of Immigration Litigation,
10                             United States Department of Justice,
11                             Washington, D.C.
12
13       UPON DUE CONSIDERATION of this petition for review of a

14   Board of Immigration Appeals (“BIA”) decision, it is hereby

15   ORDERED, ADJUDGED, AND DECREED that the petition for review

16   is GRANTED.

17       Petitioner, Aleh Zheliazouski, a native and citizen of

18   Belarus, seeks review of a September 16, 2008 order of the

19   BIA denying his motion to reopen his removal proceedings.

20   In re Aleh Zheliazouski, No. A 097 305 222 (B.I.A. Sept. 16,

21   2008).   We assume the parties’ familiarity with the

22   underlying facts and procedural history of the case.

23       We review the BIA’s denial of a motion to reopen for

24   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d

25   Cir. 2006).   Where the BIA considers relevant evidence of

26   country conditions in evaluating a motion to reopen, we

27   review the BIA’s factual findings under the substantial

28   evidence standard.     See Jian Hui Shao v. Mukasey, 546 F.3d


                                     2
1    138, 169 (2d Cir. 2008).

2        Ordinarily, an alien may only file one motion to reopen

3    and must do so within 90 days of the final administrative

4    decision.   8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).

5    There is no dispute that the Petitioner’s second motion to

6    reopen was both untimely and numerically barred.   However,

7    there is no time or numerical limitation where the alien

8    establishes materially “changed circumstances arising in the

9    country of nationality.”   8 C.F.R. § 1003.2(c)(3)(ii).

10       The BIA found that the evidence the Petitioner

11   presented at his initial hearing and that he submitted with

12   his motion to reopen both described “assaults directed

13   against Jews in Belarus, . . . incidents of vandalism

14   directed against Jewish cemeteries and property, and actions

15   of Belarusian regime officials indicating a lack of

16   sensitivity toward the Jewish community.”   With no further

17   analysis, the BIA concluded that “while the evidence reveals

18   that the number of individual anti-Semitic incidents has

19   recently increased, the evidence does not support the

20   conclusion that conditions in Belarus have materially

21   changed.”   Although this Court has rejected the notion that

22   the agency “must expressly parse or refute on the record



                                   3
1    each individual argument or piece of evidence offered by the

2    petitioner,” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d

3    Cir. 2006) (internal quotation marks omitted), the agency

4    “‘h[as] a duty to explicitly consider any country conditions

5    evidence submitted by an applicant that materially bears on

6    his claim . . . [and a] similar, if not greater, duty arises

7    in the context of motions to reopen based on changed country

8    conditions,’” Shou Yung Guo v. Gonzales, 463 F.3d 109, 115

9    (2d Cir. 2006) (quoting Poradisova v. Gonzales, 420 F.3d 70,

10   81 (2d Cir. 2005)); see also Zhi Yun Gao v. Mukasey, 508

11   F.3d 86, 87-88 (2d Cir. 2007).

12       In Poradisova, this Court reversed the BIA’s denial of

13   a motion to reopen based on changed country conditions,

14   describing the BIA’s analysis as “perfunctory (and clearly

15   inaccurate).”   420 F.3d at 81-82.   The Court found that the

16   “situation ha[d] worsened [in Belarus] since the

17   [Petitioners’] original application,” id. at 81, and

18   observed that the country conditions reports submitted with

19   the motion to reopen “devote[d] far more space to reports of

20   anti-Semitic abuses and recounts far more specific incidents

21   than the . . . Reports submitted with the [Petitioner’s]

22   original application.   The clear inference is that

23   conditions have been deteriorating,” id. at 81 n.9.

                                   4
1        As in Poradisova, the reports submitted by Petitioner

2    here depict increased anti-Semitic abuses.    Further, it is

3    not clear from the BIA’s “perfunctory” analysis, see id. at

4    82, why it did not believe that the increase in anti-Semitic

5    incidents constituted materially changed country conditions

6    in Belarus.   Although the agency may ultimately conclude

7    that the increase in anti-Semitic incidents does not

8    establish that conditions have materially changed, we remand

9    so that the agency may address the issue in detail

10   sufficient to permit meaningful review.    Id. at 77; see also

11   Gonzales v. Thomas, 547 U.S. 183, 186 (2006); Mufied v.

12   Mukasey, 508 F.3d 88, 91-92 (2d Cir. 2007) (discussing the

13   “ordinary remand rule”).

14       For the foregoing reasons, the petition for review is

15   GRANTED, and the case REMANDED for further proceedings

16   consistent with this order.    As we have completed our

17   review, the pending motion for a stay of removal in this

18   petition is DISMISSED as moot.

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22
23




                                    5
