                                                                [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________                FILED
                                                            U.S. COURT OF APPEALS
                                  No. 09-11165                ELEVENTH CIRCUIT
                                                                JANUARY 22, 2010
                              Non-Argument Calendar
                                                                   JOHN LEY
                            ________________________
                                                                 ACTING CLERK

                             Agency No. A097-951-791

JEWAN DAT,
a.k.a. Yudhishtira Sawh,

                                                                         Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.


                            ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                          _________________________

                                (January 22, 2010)

Before BIRCH, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

      Jewan Dat, a native and citizen of Guyana, petitions us for review of the
Board of Immigration Appeals’ (“BIA”) decision denying his motion to reopen his

previously denied application for asylum and withholding of removal under the

Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231(b)(3), and relief

under the United Nations Convention Against Torture, and Other Cruel, Inhuman

and Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). After

careful review, we DENY the petition.

                                 I. BACKGROUND

      Upon entering the United States in April 2004 with a fraudulent passport and

I-551 alien registration card, Dat was issued a Notice to Appear charging him with

removability under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i).

Administrative Record (“AR”) at 304-05. Dat conceded removability at an initial

hearing before an immigration judge (“IJ”) on 18 May 2004. Id. at 148-49. On 17

August 2004, Dat formally applied for asylum, withholding of removal, and CAT

relief. Id. at 152-53; 274-83.

      In his application, Dat sought relief based on his race and political opinion.

Id. at 278. He alleged that in 2001, three Afro-Guyanese individuals approached

him as he was going to vote, assaulted him, and threatened to kill him if he voted

for a member of the People’s Progressive Party (“PPP”). Id. In 2002, three

Afro-Guyanese men threw stones at his home, shouted epithets, and demanded that

he leave the county. Id. Dat also alleged that he was stabbed in 2003 and robbed
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in 2004. During both attacks, his assailants threatened to kill him because he was

Indian. Id. at 278, 283. Dat stated that he left Guyana because he feared the

Afro-Guyanese would kill him on account of his race and “assumed political

affiliation” if he remained. Id. at 283.

      Dat submitted multiple documents in support of his application, including

letters from family members corroborating his claims of assault and intimidation,

two newspaper articles from 2002 and 2004 describing the mistreatment of Indians

in Guyana, and a 2004 United States Citizenship and Immigration Services

(“USCIS”) information sheet detailing the treatment of “criminal deportees to

Guyana.” Id. at 193-96, 211-14, 270-72. The information sheet noted that

Guyanese laws permitted criminal deportees to be placed under surveillance and

that government officials allegedly hired “hit squads” to assassinate some

suspected criminals. Id. at 213. Amnesty International articles also described

these killings and noted that Indo-Guyanese citizens were disproportionately

affected by violent crime in Guyana. Id. at 215-16, 218.

      The record also contains the 2004 U.S. Department of State Country Report

on Human Rights Practices for Guyana. The report noted that Guyana has a

multiparty political system and that the PPP was reelected in 2001 in what the

report described as a “generally free and fair national election.” Id. at 198. The

report further indicated that “longstanding ethnic tensions” between Guyanese of
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Indian and African descent had led to “incidents of discrimination” and that

although both racial groups waged propaganda attacks on one another, the civil

service and security forces were “overwhelmingly staffed by Afro-Guyanese.” Id.

at 198, 206.

      At the 10 February 2006 hearing on Dat’s application, Dat testified that he

belonged to the PPP when he lived in Guyana and that he received threats from the

Afro-Guyanese opposition party as a result of his membership. Id. at 167-68. He

testified regarding the assaults he had alleged in his application and stated that if he

returned to Guyana he would be killed “[b]y the African guy” because he is Indian.

Id. at 181. On cross-examination, Dat stated that he did not have medical records

or police reports confirming the assaults, and admitted that his family had not been

threatened or harmed since he left Guyana. Id. at 182-84.

      The IJ issued an oral decision denying Dat’s application after finding that

Dat was not active in the PPP and had provided no evidence that he experienced

problems “because of [his] limited activity in support of the PPP.” Id. at 142. The

IJ found that although racial tensions existed between the Indo- and

Afro-Guyanese populations, Dat’s experiences did not rise to the level of

persecution. Id. at 143-44. Dat appealed the IJ’s decision to the BIA on 13 March

2006. Id. at 132.

      While his appeal was pending before the BIA, Dat married a U.S. citizen and
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filed with the BIA a “motion to terminate proceedings,” in which he sought an

adjustment of status based upon his marriage. Id. at 93-94, 109-10. Citing

proposed amendments to the federal regulations governing eligibility for

adjustment of status, Dat claimed that he should be permitted to pursue adjustment

of status before an IJ. Id. at 95. Dat argued in the alternative that he should be

granted refugee status based on his well-founded fear of persecution if returned to

Guyana. Id. at 95-97.

      On 9 August 2007, the BIA issued a decision adopting and affirming the IJ’s

decision and holding that Dat had failed to establish eligibility for asylum,

withholding of removal, or CAT relief. Id. at 83. The BIA also denied Dat’s

motion to terminate the proceedings after finding that Dat did not fit within the

“narrow exception that would permit an [IJ] to consider his application for

adjustment of status.” Id. at 84. The BIA dismissed Dat’s appeal accordingly. Id.

      On 7 January 2009, Dat moved the BIA to reopen his removal proceedings

based on changed country conditions, arguing that racial violence in Guyana was

“out of control.” Id. at 32, 34, 37-38. Dat stated additionally that USCIS had

denied his request for an adjustment of status and asked the BIA to remand the

case to an IJ so that the IJ could “administratively close the case pending the

decision of the administrative appeals unit regarding adjustment of status relief.”

Id. at 32-33.
                                           5
      Dat submitted several documents in support of his motion to reopen,

including: (1) a BBC News report and two additional BBC articles detailing a mass

murder in a Guyanese village that, according to the Guyanese president, “may have

been meant to stir up ethnic tension” in the mostly Indian village; (2) an “issue

paper” prepared by the Canadian Immigration and Refugee Board noting a lack of

consensus over “whether the Indo-Guyanese are disproportionately victimized in

criminal situations”; (3) two articles describing a gang attack on a police station;

and (4) a news release from the Guyana Government Information Agency

reporting on an “upsurge in crime” and the government’s plans for dealing with it.

Id. at 48-49, 50-55, 58-59, 60-67, 75-79.

      Finally, Dat submitted the 2008 United States Department of State Country

Report on Human Rights Practices for Guyana. The 2008 report was largely

identical to the 2004 report, except that it omitted the 2004 report’s introductory

clause concerning discrimination based on Indo-Guyanese ethnicity. See id. at 68.

The 2008 report indicated that “[r]acial and ethnic tensions manifested during the

2006 election campaign [had] diminished” and that “[t]he Ethnic Relations

Commission [had] resolved 50 cases involving complaints of discrimination

against members of racial or ethnic minorities.” Id. at 72.

      On 9 January 2009, Dat filed a motion to stay removal proceedings pending

the BIA’s decision on his motion to reopen. Id. at 8. In its 17 February 2009
                                            6
decision, the BIA first found that Dat’s motion was untimely because it was filed

more than ninety days after entry of its 9 August 2007 order dismissing his appeal.

Id. at 2; see INA § 240(c)(7)(C)(i) (2009); 8 U.S.C. § 1229a(c)(7)(C)(i)(2009); 8

C.F.R. § 1003.2(c)(2) (2009). It then found that Dat’s motion to reopen was not

exempt from the ninety-day time-bar because none of the evidence Dat submitted

in support of his motion showed that conditions had materially changed in Guyana.

Id. at 2-3; see 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).

Specifically, the BIA found that the articles Dat submitted documented attacks

against two villages and several attacks against the police, but provided no clear

motive for those attacks. Id. at 2-3. Although the Guyanese president had

speculated that some attacks were intended to stir up racial tensions, other reports

suggested that the attacks were gang-related and based on personal vendettas. Id.

at 3. In sum, there was no evidence that the attacks were anything other than

criminal actions or that they were focused against Indo-Guyanese. Id. The BIA

further found that the articles demonstrated that tension between the Afro- and

Indo-Guyanese populations had existed for years. Because racial hostility in

Guyana “clearly pre-dated [Dat’s] hearing,” it did not constitute a “new” or

“changed” condition. Id. With respect to Dat’s request that the proceedings be

administratively closed, the BIA found that Dat “ha[d] an administratively final

order of removal, with no proceedings pending before either the Board or the
                                           7
Immigration Judge” and stated that it “will not reopen proceedings that are final

solely to administratively close them.” Id. at 2. The BIA denied Dat’s motion to

reopen as well as his requests for a stay of removal and administrative closure of

the proceedings. Id. at 3. This petition for review followed.

                                 II. DISCUSSION

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

an abuse of discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir.

2009) (per curiam). Under this deferential standard, “[our] review is limited to

determining whether the BIA exercised its discretion in an arbitrary or capricious

manner.” Id. Motions to reopen are disfavored, especially in removal proceedings,

and thus the moving party bears a heavy burden. Id.

      Dat argues that the BIA erred in failing to reopen the removal proceedings

because he has demonstrated “changed country conditions” and, alternatively,

because his marriage to a United States citizen entitles him to an adjustment of

status as determined by an IJ. We disagree.

      As a threshold matter, Dat has cited no binding authority in support of his

argument that he is entitled to have his case reopened based upon his marriage and

subsequent application for adjustment of status. An IJ lacks jurisdiction to

adjudicate an adjustment of status claim filed by an arriving alien who is placed in

removal proceedings unless: (1) the alien filed the adjustment of status application
                                          8
with USCIS; (2) the alien left the United States and returned pursuant to a grant of

advance parole; (3) the alien’s adjustment of status was denied by USCIS; and (4)

the alien was placed in removal proceedings either upon his return to the United

States pursuant to the grant of advance parole or after USCIS denied the

application. 8 C.F.R. § 1245.2(a)(1)(ii) (2009). Dat has not shown that he meets

these requirements. Moreover, even assuming an IJ would have jurisdiction to

adjudicate Dat’s adjustment of status claim, we fail to see how that entitles him to a

reopening of his removal proceedings under 8 U.S.C. § 1229a(c)(7).

      The BIA also did not abuse its discretion in finding that reopening was not

warranted based on changed circumstances. Although a motion to reopen must be

filed within ninety days after the final order of removal is entered, this time-bar

does not apply where the alien presents material evidence of changed country

conditions that “was not available and would not have been discovered or

presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). The

evidence Dat presented, which included articles reporting on a mass murder in a

largely Indian village, attacks against Indo-Guyanese, a gang attack on a police

station, and a general increase in crime, does not demonstrate heightened race-

based violence against Indo-Guyanese. As the BIA pointed out, the reports suggest

that the attacks were the product of generalized violence and were not focused

against the Indo-Guyanese. Moreover, none of the reports indicate that racial
                                           9
tensions between the Afro- and Indo-Guyanese are any worse now than they were

in 2006. In fact, the 2008 country report made no mention of race-related

persecution and noted that tensions between Indo- and Afro-Guyanese had

“diminished.” Id. at 72. In short, the documents Dat submitted in support of his

motion to reopen, though not previously available, reflect either no change, or

indeed some improvement, in racial and ethnic tensions in Guyana. Accordingly,

the BIA did not err in denying Dat’s motion to reopen removal proceedings based

on changed conditions in Guyana.

                                III. CONCLUSION

      Dat petitions us for review of the BIA’s denial of his motion to reopen his

removal proceedings. For the foregoing reasons, we DENY the petition.

      PETITION DENIED.




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