            Case: 13-10359    Date Filed: 12/10/2013   Page: 1 of 11


                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                      _____________________________

                               No. 13-10359
                           Non-Argument Calendar
                      _____________________________

                       Agency Case No. A089-345-526


NILAY ESIN,
                                                                         Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,
                                                                       Respondent.

                      _____________________________

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

                             (December 10, 2013)

Before MARTIN, JORDAN and DUBINA, Circuit Judges.

PER CURIAM:

     Nilay Esin, a native and citizen of Turkey, petitions for review of the Board

of Immigration Appeals’ denial of her motion to reopen removal proceedings

based upon newly discovered evidence that she asserts was not available at the
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time of her prior hearing. On appeal, Ms. Esin argues that the denial of her motion

to reopen was arbitrary and capricious because the BIA failed to consider the new

evidence she submitted in support of her motion to reopen, particularly failing to

accord “special weight” to the United States Commission on International

Religious Freedom’s 2012 Annual Report (“USCIRF’s 2012 Annual Report”).

After a careful review of the record and the parties’ arguments, we deny Ms. Esin’s

petition.

                                         I

      In July of 2006, Ms. Esin traveled to the United States as a nonimmigrant

student authorized to remain in the country for a temporary period. Eleven days

later, she married a 42-year-old United States citizen. On June 18, 2007, Ms. Esin

divorced her husband. Ms. Esin’s ex-husband told the United States Citizenship

and Immigration Services, under oath, that his marriage to Ms. Esin had been

fraudulent and staged to procure immigration status for Ms. Esin. Following the

divorce, Ms. Esin joined a Baptist church in 2008 and was baptized on February

14, 2010.

      In May of 2010, Ms. Esin filed an application for asylum, withholding of

removal, and relief under the United Nations Convention Against Torture

(“CAT”), based largely upon her religion. Ms. Esin asserted that her father was an

alcoholic who suffered from major depressive disorder and that while she was


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growing up in Turkey, he had sexually assaulted her and had beaten her and her

siblings. She feared this treatment would continue if she returned to Turkey, in

part because of her conversion to Christianity.

      An asylum officer referred Ms. Esin’s application to an Immigration Judge

(“IJ”) after concluding that her application was untimely filed. The Department of

Homeland Security issued Ms. Esin a Notice to Appear, charging that she was

removable pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien

who had remained in the United States longer than permitted. Ms. Esin admitted

the allegations contained in the Notice to Appear and conceded removability.

      On June 20, 2011, the IJ conducted a merits hearing. Ms. Esin testified that

she was raised as a Muslim and converted to Christianity, that she started attending

church two or three years before the hearing, that her family is still Muslim, and

that her mother told her that if she returned to Turkey, her father would kill her

because she had converted to Christianity. Additionally, Ms. Esin testified that

when she was 16 years old, her father raped her and that she never told anyone

because her father threatened to kill her. She also explained that she divorced her

husband because he had cheated on her.

      With respect to the treatment of religious minorities in Turkey, a 2010 State

Department International Religious Freedom Report that was in evidence before

the IJ provided, in relevant part, that the Turkish government generally respected


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religious freedom in practice, though some Christians did face restrictions and

occasional harassment for proselytizing. The 2010 Religious Freedom Report

further indicated that people who converted from Islam sometimes experienced

societal harassment and violence from relatives and neighbors and that Christians

who engaged in religious advocacy were occasionally threatened or pressured by

government and state officials.

      Following the hearing, the IJ issued an oral decision denying Ms. Esin’s

application for asylum, withholding of removal, and CAT relief. Although the IJ

found that Ms. Esin’s application for relief was timely and that her conversion to

Christianity was legitimate, he nevertheless denied the application because he

found Ms. Esin not to be credible due to discrepancies in her testimony regarding

her father and her apparently fraudulent marriage. Further, the IJ found that even

if Ms. Esin was credible, her application would still be denied. First, Ms. Esin had

not shown that she was a member of a particular social group. Second, in light of

the 2010 Religious Freedom Report, Ms. Esin did not have an objectively

reasonable well-founded fear of persecution based on her conversion to

Christianity because the treatment of Christians in Turkey did not amount to

persecution. Ms. Esin appealed the IJ’s denial of asylum and withholding of

removal to the BIA.




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      The BIA dismissed Ms. Esin’s appeal, concluding that the IJ’s adverse

credibility determination was not clearly erroneous and agreeing with the IJ’s

finding that Ms. Esin had failed to establish a well-founded fear of persecution

based on her conversion to Christianity. Relying on the 2010 Religious Freedom

Report, the BIA concluded that, while Christians experienced harassment and

discrimination in Turkey, that mistreatment did not rise to the level of persecution.

The BIA further determined that because Ms. Esin had failed to satisfy the lower

burden of proof required for asylum, it followed that she had also failed to satisfy

the higher standard of eligibility for withholding of removal.

      On October 9, 2012, Ms. Esin moved the BIA to reopen her removal

proceedings. She asserted that she had new evidence that was unavailable at the

time of her initial hearing, specifically the USCIRF’s 2012 Annual Report, a

January 2012 Report from Turkey’s Association of Protestant Churches, a blog

entry discussing the USCIRF’s 2012 Annual Report, and a news article about the

growing number of threats against Christian clerics in Turkey.

      In pertinent part, the USCIRF’s 2012 Annual Report placed Turkey onto a

list of “Countries of Particular Concern” based on the Turkish government’s

systematic and egregious limitations on freedom of religion affecting all religious

communities in Turkey, particularly affecting non-Muslim religious minorities

who face societal discrimination and occasional violence. Additionally, the 2012


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Report from Turkey’s Association of Protestant Churches reflected that in 2011

there were continued reports of hate crimes against Christians in Turkey, but noted

that in many of the cases, either the perpetrator was being prosecuted or the victim

had elected not to press charges.

      Ms. Esin argued that her proceedings should be reopened based on this new

evidence of escalating violence against Christians in Turkey. In particular, she

stressed that the USCIRF’s placement of Turkey on its list of “Countries of

Particular Concern” showed that the treatment of Christians rose to the level of

persecution.

      The BIA reviewed the new evidence Ms. Esin submitted, and acknowledged

that there was continued harassment and occasional violence against religious

minorities in Turkey, but concluded that the evidence Ms. Esin presented was not

sufficient to make a prima facie showing that she would likely face harm rising to

the level of persecution upon her return to Turkey due to her conversion to

Christianity. Absent such evidence, the BIA found that Ms. Esin had not made a

prima facie showing that she had a well-founded fear of persecution if she were to

return to Turkey. The BIA denied Ms. Esin’s motion to reopen the proceedings

before the IJ because she had not established that, if her proceedings were

reopened, the new evidence would likely change the result of the case. Ms. Esin

now appeals from the BIA’s order denying her motion to reopen.


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                                          II

         We review the denial of a motion to reopen for an abuse of discretion. See

Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Our review is

limited to determining whether the BIA exercised its discretion in an arbitrary or

capricious manner. See id.

                                          A

         As the Supreme Court has acknowledged, “[m]otions for reopening of

immigration proceedings are disfavored . . . .” INS v. Doherty, 502 U.S. 314, 323

(1992) (citing INS v. Abudu, 485 U.S. 94, 107-08 (1998)). An alien who moves to

reopen her immigration proceedings based on new evidence of changed country

conditions bears a “heavy burden, and must present evidence of such a nature that

the BIA is satisfied that if proceedings before the IJ were reopened, with all

attendant delays, the new evidence offered would likely change the result in the

case.”     Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006) (internal

quotation marks, alterations, and citations omitted). A motion to reopen must be

supported by affidavits or other evidentiary material, and it must state new facts

that will be proven at a hearing to be held if the motion is granted. See Ali, 443

F.3d at 808 (quoting 8 U.S.C. § 1229a(c)(7)).


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      We have previously said that, at a minimum, there are at least three

independent grounds upon which the BIA may deny a motion to reopen: (1) failure

to establish a prima facie case; (2) failure to introduce evidence that was material

and previously unavailable; and (3) a determination that, despite the alien’s

statutory eligibility for relief, he or she is not entitled to a favorable exercise of

discretion. See Jiang, 568 F.3d at 1256 (quoting Al Najjar v. Ashcroft, 257 F.3d

1262, 1302 (11th Cir. 2001)).

      An applicant for asylum must meet the Immigration and Nationality Act’s

definition of a refugee. See 8 U.S.C. § 1158(b)(1). The INA defines a refugee as a

person who cannot return to his or her home country due to “persecution or a well-

founded fear of persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). See

also Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (“To establish

asylum eligibility, the petitioner must, with specific and credible evidence,

demonstrate (1) past persecution on account of a statutorily listed factor, or (2) a

‘well-founded fear’ that the statutorily listed factor will cause future persecution.”).

“This Court has held that persecution is an extreme concept requiring more than a

few isolated incidents of verbal harassment or intimidation[,] mere harassment is

not persecution.” Ruiz v. Gonzales, 479 F.3d 762, 766 (11th Cir. 2007) (citations

and alterations omitted).


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      As applicable here, “[t]o establish eligibility for asylum based on a well-

founded fear of future persecution, the applicant must prove (1) a subjectively

genuine and objectively reasonable fear of persecution that is (2) on account of a

protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006)

(citations and internal quotation marks omitted). An applicant who cannot meet

the “well-founded fear standard” for asylum is generally precluded from qualifying

for withholding of removal because she cannot meet the higher standard of

showing that she would “more likely than not” be persecuted. See Rivera v. U.S.

Att’y Gen., 487 F.3d 815, 820-21 (11th Cir. 2011).

                                        B

      We now turn to whether the BIA abused its discretion in denying Ms. Esin’s

motion to reopen her immigration proceedings. Ms. Esin contends that, as with

reports from the Department of State, the BIA should have accorded “special

weight” to the USCIRF’s 2012 Annual Report as highly probative evidence on

changed country conditions in Turkey.       Ms. Esin correctly notes that State

Department reports on country conditions are accorded “‘special weight’ because

they are based on the collective expertise and experience of the Department of

State, which ‘has diplomatic and consular representatives throughout the world.’”

Matter of H-L-H- & Z-Y-Z, 25 I. & N. Dec. 209, 213 (B.I.A. 2010), abrogated on

other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012) (quoting


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Aguilar-Ramos v. Holder, 594 F.3d 701, 705 n.6 (9th Cir. 2010), and Xiao Ji Chen

v. U.S. Dep't of Justice, 471 F.3d 315, 341 (2d Cir. 2006)). The BIA here,

however, was not required to give special weight to the USCIRF’s 2012 Annual

Report because, as Ms. Esin acknowledges, it was not a report issued by the State

Department. Nevertheless, the BIA considered the report and explicitly cited to it

when noting the continuing harassment and occasional violence against religious

minorities in Turkey.

      The BIA denied Ms. Esin’s motion to reopen after considering the evidence

she had submitted, including the USCIRF’s 2012 Annual Report. Notably, having

adequately explained its decision, the BIA was not required to detail how each

piece of evidence failed to support Ms. Esin’s claim that she had made a prima

facie showing that she would face harm rising to the level of persecution upon her

return to Turkey due to her becoming a Christian. See Seck v. U.S. Att’y Gen., 663

F.3d 1356, 1364 (11th Cir. 2011) (“Where the BIA has given reasoned

consideration to the petition, and made adequate findings, we will not require that

it address specifically each claim the petitioner made or each piece of evidence the

petitioner presented.   However, the BIA must consider the issues raised and

announce its decision in terms sufficient to enable a reviewing court to perceive

that it has heard and thought and not merely reacted.”) (quoting Tan v. U.S. Att’y

Gen., 446 F.3d 1369, 1374 (11th Cir. 2006)) (internal quotation marks omitted).


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      On this record, we cannot say that the BIA’s decision was arbitrary and

capricious. There is nothing in the USCIRF’s 2012 Annual Report or in any of the

other evidence Ms. Esin submitted that indicates that the unfortunate treatment of

religious minorities in Turkey, specifically Christians, rose to the level of

persecution. See Ruiz, 479 F.3d at 766. Thus, the BIA did not abuse its discretion

in denying Ms. Esin’s motion to reopen since Ms. Esin did not make a prima facie

showing that she has a well-founded fear of persecution if she were to return to

Turkey.

                                       III

      The BIA did not abuse its discretion in denying Ms. Esin’s motion to

reopen.

      PETITION DENIED.




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