     17-2792
     Starchikova v. Barr
                                                                                     BIA
                                                                     A095 476 785/786/788
                                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 TO 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 Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 12th day of July, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   YELENA STARCHIKOVA, AZAD
14   CHIGATEAV, AZIZA CHIGATAYEVA,
15            Petitioners,
16
17                         v.                                    17-2792
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONERS:                      Alexander J. Segal, New York, NY.
25
26   FOR RESPONDENT:                       Chad A. Readler, Acting Assistant
27                                         Attorney General; Anthony P.
28                                         Nicastro, Assistant Director;
29                                         Ilana J. Snyder, Trial Attorney,
30                                         Office of Immigration Litigation,
31                                         United States Department of
32                                         Justice, Washington, DC.
1         UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5         Petitioners Yelena Starchikova, Azad Chigateav, natives

6    of the Soviet Union and citizens of Uzbekistan, and Aziza

7    Chigatayeva, a native and citizen of Uzbekistan, seek review

8    of an August 25, 2017 decision of the BIA denying their motion

9    to   reopen    their   removal   proceedings.       In   re   Yelena

10   Starchikova, Azad Chigateav, Aziza Chigatayeva, Nos. A 095

11   476 785/786/788 (B.I.A. Aug. 25, 2017).             We assume the

12   parties’ familiarity with the underlying facts and procedural

13   history in this case.

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

15   abuse of discretion and its country conditions

16   determination for substantial evidence.         See Jian Hui Shao

17   v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).         A motion

18   to reopen must be filed no later than 90 days after the

19   date on which the final administrative decision was

20   rendered.     8 U.S.C. § 1229a(c)(7)(C)(i).     It is undisputed

21   that the petitioners’ 2017 motion to reopen was untimely

22   because it was filed more than 12 years after their removal
                                      2
1    order.    See id.        The time limitation for filing a motion to

2    reopen does not apply, however, if reopening is sought to

3    apply for asylum “based on changed country conditions

4    arising in the country of nationality or the country to

5    which removal has been ordered, if such evidence is

6    material and was not available and would not have been

7    discovered or presented at the previous proceedings.”                       Id.

8    § 1229a(c)(7)(C)(ii).

9        The     BIA    did     not   abuse       its   discretion    in    declining

10   reopening.    The record reflects that the BIA acknowledged the

11   allegations       of     deteriorating         conditions       in    Uzbekistan

12   following    President       Islam   Karimov’s         death    in    2016,   but

13   reasonably concluded that those allegations did not meet the

14   high burden for reopening because the petitioners did not

15   demonstrate       that    the    unique      conditions     faced     by   ethnic

16   Russians or Orthodox Christians are significantly different

17   than at the time of their asylum hearing before the IJ in

18   2003.    Id. (requiring change in country conditions material

19   to asylum claim); In re S-Y-G-, 24 I. & N. Dec. 247, 253

20   (B.I.A. 2007) (“In determining whether evidence accompanying

21   a motion to reopen demonstrates a material change in country

22   conditions that would justify reopening, [the BIA] compare[s]
                                              3
1    the evidence of country conditions submitted with the motion

2    to those that existed at the time of the merits hearing

3    below.”).

4           The record supports the BIA’s conclusion that conditions

5    for ethnic Russians and Orthodox Christians have not worsened

6    since 2003, as the evidence reflects that they simply have

7    not improved over time.       See In re S-Y-G-, 24 I. & N. Dec.

8    at 257 (“Change that is incremental or incidental does not

9    meet the regulatory requirements for late motions of this

10   type.”); see also Certified Administrative Record (“CAR”) at

11   104 (Human Rights Watch report reflecting long history of

12   human rights abuses in Uzbekistan).           The petitioners allege

13   that “contempt and intolerance for ethnic Russians” have

14   persisted     for    years   in     Uzbekistan    and    cite    societal

15   intolerance for interfaith marriages, but they do not allege

16   that    President    Islam   Karimov’s      death   has    resulted      in

17   increased    intolerance.         They   assert   that   the    change   in

18   leadership has precipitated degraded conditions throughout

19   Uzbekistan,    but    they   have    not   identified     changes     that

20   particularly affect ethnic Russians or Orthodox Christians.

21   The evidence they proffered, including a State Department

22   report and an affidavit from an expert witness, showed neither
                                          4
1    a material worsening in conditions afflicting ethnic Russians

2    or Orthodox Christians since Starchikova originally applied

3    for asylum, nor treatment of these groups rising to the level

4    of persecution.    CAR at 104, 124-27, 160, 183.

5         Moreover, the BIA did not abuse its discretion in finding

6    no   changed   conditions   with    respect   to   the   petitioners’

7    imputed political opinion claim.       Petitioners argue that the

8    Uzbek government “treat[s] every Uzbek who has been abroad as

9    a potential terrorist,” but their evidence showed only that

10   some men who stayed outside the country for several years

11   were placed on lists for periodic searches and young men

12   living abroad were thought to be Islamic extremists.             And

13   they did not produce any evidence that Chigateav would be

14   perceived as such an individual or that individuals returning

15   from the United States (as opposed to those returning from

16   Egypt or Turkey) would be targeted.       Furthermore, any asylum

17   claim based on the petitioners’ status as asylum seekers

18   implicates their personal circumstances, not a change in

19   conditions in Uzbekistan, and does not trigger an exception

20   to the time for reopening.         See Wei Guang Wang v. BIA, 437

21   F.3d 270, 273-74 (2d Cir. 2006) (differentiating between

22   changed country conditions, which warrant reopening of asylum
                                        5
1    proceedings, and changed personal circumstances, which do

2    not).    Moreover, although the record reflects that Uzbek

3    citizens     who    have    resided         outside      of   Uzbekistan      may    be

4    interrogated and monitored, the record does not reflect harm

5    rising to the level of persecution on return to Uzbekistan.

6    See   Y.C.   v.     Holder,       741      F.3d   324,    338   (2d    Cir.       2013)

7    (reasoning that “other governments’ restraints on personal

8    autonomy strike us as oppressive” but may not support an

9    asylum claim) (internal quotation marks omitted); In re S-Y-

10   G-, 24 I. & N. Dec. at 258 (holding that proffered evidence

11   must be material and must support prima facie case for

12   asylum).

13         Finally,       the      BIA       reasonably        concluded        that     the

14   petitioners       did   not      establish        that   Chigateav     would      face

15   persecution for allowing his daughter to be baptized and

16   raised as a Christian.              Although the 2003 country conditions

17   evidence shows that those who sought to convert Uzbek Muslims

18   to    Christianity         may      have     been     subjected       to    societal

19   harassment or government monitoring, the new evidence does

20   not reflect such treatment, much less a material worsening of

21   conditions.        The petitioners point to their expert witness’s

22   statement.     But the expert stated that Chigateav would face
                                                 6
1    “cultural ostracism” without identifying harm rising to the

2    level of persecution or a change in conditions as needed to

3    excuse the time limit.       See Ivanishvili v. U.S. Dep’t of

4    Justice, 433 F.3d 332, 340-41 (2d Cir. 2006); Jian Hui Shao,

5    546 F.3d at 168 (reasoning that, for motions to reopen, aliens

6    “carry the heavy burden of demonstrating that the proffered

7    new   evidence   would   likely   alter   the   result”   (internal

8    quotation marks omitted)).

9          For the foregoing reasons, the petition for review is

10   DENIED.    As we have completed our review, any stay of removal

11   that the Court previously granted in this petition is VACATED,

12   and any pending motion for a stay of removal in this petition

13   is DISMISSED as moot.    Any pending request for oral argument

14   in this petition is DENIED in accordance with Federal Rule of

15   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

16   34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe,
19                                 Clerk of Court




                                       7
