                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 11-1066
                                     ___________

                                  RIAZ TALUKDER,
                                                      Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent

                     ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                            (Agency No. A093-119-831 )
                    Immigration Judge: Honorable Eugene Pugliese
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 8, 2011

        Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

                                ( filed: June 14, 2011 )
                                      ___________

                                      OPINION
                                     ___________

PER CURIAM

      Riaz Talukder, a native and citizen of Bangladesh, petitions for review of an order

of the Board of Immigration Appeals (“BIA”) that denied his motion to reopen or
reconsider. We will deny the petition for review.

       Talukder was placed in removal proceedings in 1998 because he attempted to

enter the United States without being in possession of proper documents. Talukder

admitted that he was removable, but applied for asylum and related relief. Talukder‟s

claims were based on his allegation that he had been, and would be, persecuted by

members of his wife‟s family, who were part of the Jamaat e-Islami political party. He

alleged that the wife‟s family members, along with about ten others, severely beat his

father and him in 1986 after he proposed marriage, because the wife‟s family believed

that he had turned away from religion; that he was not a good Muslim. A.R. 487-88; 653.

The Immigration Judge (“IJ”) denied relief. A.R. 395. Taluder appealed. In a decision

dated September 9, 2002, the BIA “determine[d] that [Talukder] was credible,” and that

he “fear[ed] persecution from his in-laws because they are religious fanatics.” A.R. 352.

The BIA assumed for the sake of appeal that his attackers sought to harm him, at least in

part, on account of religious grounds, and that the harm rose to the level of persecution.

Id. The BIA denied relief, however, because Talukder had not shown that the

government was unwilling or unable to protect him from his wife‟s family. Id. The BIA

also noted that Talukder had not shown that he would be unable to relocate within

Bangladesh to avoid future persecution. A.R. 353. Talukder did not petition for review

of this decision.

       Nearly eight years later, Talukder filed a motion to reopen, seeking asylum,

withholding of removal and protection under the Convention Against Torture (“CAT”)
                                             2
based on changed country conditions. Talukder alleged that the changes included

“increased fundamentalist activity, the growth of Taliban groups country wide, the

growth of any-western [sic] hatred and the increase in the ability of these Islamic groups

to harm and injure [Talukder] and his family at the provocation of [his] wife‟s family,

along with the police and government‟s willingness or inability to stop the hatred.” A.R.

101.

       In an October 8, 2010 decision, the BIA denied the motion. The BIA recognized

that a showing of material and previously unavailable changed country conditions would

excuse the untimeliness of the motion to reopen, but determined that Talukder had “not

specified how conditions have changed since his 1999 hearing.” A.R. 89. The BIA

noted that, in particular, Talukder had failed to address the conclusion in the BIA‟s

previous opinion that he had “failed to demonstrate that the police were unable or

unwilling to protect him,” and that he had “otherwise failed to present evidence that

„changed conditions‟ exist in Bangladesh which would materially affect his claim.” Id.

Talukder did not petition for review of this decision.

       Instead, about a month later, Talukder filed a motion requesting reconsideration.

With his motion, he included eleven exhibits, including current country reports,

documentation of injuries he received in 1996, documentation to support an allegation

that one of his brothers was beaten by his wife‟s family in 2002, documentation of an

alleged attack on another brother by his wife‟s family in 2009, and affidavits regarding

the notoriety of his wife‟s family and the fact that they are related to the current Minister
                                              3
of Communications.

       The BIA noted that Talukder did not identify any specific error in the BIA‟s

October 8, 2010 order, and did not point out any change of law. The BIA thus denied the

motion to reconsider.1 Acknowledging the numerous attachments, the BIA also

considered the motion as a motion to reopen. The BIA first noted that the motion was

“both untimely and barred by numerical limitations.” A.R. 3. The BIA again recognized

that the time limitations (and numerical limitations) do not apply to a motion to reopen

“based on changed country conditions, if such evidence is material and was not available

and could not have been discovered or presented at the former hearing.” Id. The BIA

stated, however, that Talukder had “not indicated why these documents [attached to the

motion] were not included in his prior motion,” that he had “not articulate[d] any

changed conditions” since the October 8, 2010 order, and that he also had “not

demonstrated any changed country conditions which would materially affect his claim for

asylum in 1999.” Id. The BIA further stated that Talukder had produced insufficient

evidence to alter the IJ‟s 1999 finding that “[Talukder] had failed to demonstrate that any

fear he maintained of his in-laws was based on one of the five protected grounds.” A.R.

4. Talukder filed a timely, counseled petition for review.

       We have jurisdiction to review the BIA‟s December 28, 2010 order in which it




       1
           Talukder does not challenge this portion of the decision.

                                               4
refused to reopen or reconsider the case.2 Kucana v. Holder, 130 S. Ct. 827, 840 (2010).

Our standard of review is narrow: we review the BIA‟s denial of a motion to reopen or

reconsider for abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005).

The BIA‟s decision is entitled to “broad deference,” Ezeagwuna v. Ashcroft, 325 F.3d

396, 409 (3d Cir. 2003) (internal quotation and citation omitted), and it “will not be

disturbed unless [it is] found to be arbitrary, irrational, or contrary to law,” Guo v.

Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (internal quotation and citation omitted).

In his brief, Talukder argues that in determining whether country conditions had changed,

the BIA erred in considering the time since the previous motion to reopen, instead of the

time since the proceedings before the IJ; that the BIA contradicted itself by saying that he

had not demonstrated that his fear was based on a protected ground; and that it erred in

failing to find that he made out a prima facie case for relief.3

       We agree that the “change” in country conditions that will excuse an otherwise

untimely motion to reopen is measured from the time that the hearing before the IJ took


       2
         We lack jurisdiction to review the BIA‟s removal order of September 9, 2002,
and its October 8, 2010 order denying Talukder‟s first motion to reopen because Talukder
did not file timely petitions for review of those orders. See 8 U.S.C. § 1252(b)(1)
(providing for 30-day deadline in which to file petition for review); Stone v. INS, 514
U.S. 386, 395 (1995) (motion to reopen or reconsider does not toll time to file petition for
review of BIA‟s underlying removal order).
       3
        Talukder also argues that he showed he was likely to be tortured if he returned to
Bangladesh. We agree with the Government that we lack jurisdiction to consider this
argument, as Talukder did not raise any claim regarding possible torture in his second
motion to reopen. 8 U.S.C. § 1252(d)(1).

                                               5
place. Filja v. Gonzales, 447 F.3d 241, 253-54 (3d Cir. 2006). Nevertheless, we do not

believe that the BIA abused its discretion in considering that the evidence Talukder

sought to introduce could have been included with his previous motion to reopen, where

that motion was based on the same claim, and the same alleged change in country

conditions propounded in his second motion to reopen. We do not believe that Congress

anticipated that when an alien‟s first motion to reopen failed because he failed to meet his

burden of establishing a prima facie case, he could continue to file serial motions to

reopen, based on the same claim and same changes in country conditions, but seeking to

introduce new evidence.

       We also agree that the BIA may have erred in relying on the IJ‟s finding that

Talukder “had failed to demonstrate that any fear he maintained of his in-laws was based

on one of the five protected grounds” where, in contrast, in its decision on appeal it had

assumed for the sake of appeal that his attackers sought to harm him, at least in part, on

account of religious grounds, and that the harm rose to the level of persecution.

However, any error was of no consequence, as we agree with the BIA‟s alternative

holding that Talukder had “not demonstrated any changed country conditions which

would materially affect his claim for asylum in 1999.” The only changes in country

conditions that Talukder indicated were that the Awami League party had come into

power in Bangladesh and that the current Minister of Communications of Bangladesh is




                                             6
related to his wife‟s family.4

       However, whether the political change would make any change in the probability

that Talukder would be persecuted is somewhat unclear from the evidence he submitted.

For example, an affidavit from the Rajihar Union Parisad Chairman stated that

Talukder‟s wife‟s family “is always supported and protected” and that the “police . . . do

not do anything about the malicious acts committed by” the family “when the BNP party

is in power.” The affiant opined that now that “the Awami League party is in power . . .

you would think that this would cut down [the wife‟s family‟s] power because the Awami

League party has suppressed Islamic fundamentalists and generally brought them under

control by arresting them for causing trouble” but that the wife‟s family is “a very well

politically connected family and as such [it] yield[s] more power under the current

government then [sic] [it] did before.” A.R. 73. But if Talukder‟s in-laws proceeded

with impunity before the Awami League party came into power, it is not clear how the

political change can constitute a material change in country conditions. We thus find that

the BIA did not abuse its discretion in denying the motion to reopen.

       For the foregoing reasons, we will deny the petition for review.




       4
         Talukder included an affidavit from someone related to his wife‟s father who
indicated that the Communications Minister is “from the same family” as Talukder‟s
father-in-law, but the affidavit does not indicate what the relationship is.
                                             7
