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                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                                 No. 18-12447
                             Non-Argument Calendar
                           ________________________

                            Agency No. A206-366-254



HUSSAIN MOSHAROF,
a.k.a. Mosharof Hussain,

                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                           ________________________

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

                                (May 28, 2019)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Mosharof Hossain,1 a native and citizen of Bangladesh, seeks review of the

BIA’s denial of his motion to reopen. He contends that the Board of Immigration

Appeals (“BIA”) abused its discretion by not granting his motion because it (1)

failed to properly analyze the record and mischaracterized the evidence based on a

prior adverse credibility finding, (2) improperly gave affidavits in support of his

motion minimal weight, (3) required to him to meet a higher burden of proof by

requiring him to show that the conditions in Bangladesh had “significantly

worsened,” and (4) abused its discretion by not finding that he was eligible for

withholding of removal and CAT relief based on the newly submitted evidence.

       We review the BIA’s denial of a motion to reopen for abuse of discretion.

Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). Our review “is limited

to determining whether there has been an exercise of administrative discretion and

whether the matter of exercise has been arbitrary or capricious.” Id. (citation and

quotation marks omitted). “Generally, [m]otions to reopen are disfavored,

especially in a removal proceedings, where, as a general matter, every delay works

to the advantage of the [removable] alien who wishes merely to remain in the

United States.” Id. (citation and quotation marks omitted).




       1
         The caption for this case and many documents in the administrative record spell
Hossain’s last name “Hussain.” However, Hossain filed a motion with the IJ to correct the
spelling and order of his name, which indicated that the correct spelling of his last name was
“Hossain.” Accordingly, we use Hossain.
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      We are required to “inquire into our subject matter jurisdiction sua sponte.”

Gaksakuman v. U.S. Atty. Gen., 767 F.3d 1164, 1168 (11th Cir. 2014). A petition

to review a removal order must be made within 30 days after the date of the final

order of removal. 8 U.S.C. § 1252(b)(1). We have held that we lack jurisdiction to

review earlier trips through immigration proceedings. Bing Quan Lin v. U.S.

Attorney General, 881 F.3d 860, 870 (11th Cir. 2018). In Gaksakuman, we held

that we lacked jurisdiction to review the merits of a removal order because,

although the petitioner filed a petition to review that order, the petition was

subsequently dismissed and the 30-day window to file a petition for review had

passed. 767 F.3d at 1168-69.

      A motion to reopen “shall state the new facts that will be proven at a hearing

to be held if the motion is granted, and shall be supported by affidavits or other

evidentiary material.” INA § 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B);

Verano-Velasco v. U.S. Att’y Gen., 456 F.3d 1372, 1376 (11th Cir. 2006). Motions

to reopen may be granted if there is new evidence that is material and was not

available and could not have been discovered or presented at the removal hearing.

See 8 C.F.R. § 1003.2(c)(1). To make such a showing, the alien “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, 443 F.3d at 813


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(quotation omitted). The BIA may deny a motion to reopen, if the alien fails to

establish a prima facie case. Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir.

2001).

      To be eligible for withholding of removal under the INA, an alien must

show that his “life or freedom would be threatened in [the country of removal]

because of the alien’s race, religion, nationality, membership in a particular social

group, or political opinion.” INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).

      The alien has the burden of proof, and must show that he or she would more

likely than not be persecuted if returned to the country of removal. Id.;

D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004). The alien

must also show that the persecution will be “because of” one of the five protected

grounds. Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004); See also

INA § 208(b)(1)(B)(i); 8 U.S.C. § 1158(b)(1)(B)(i) (noting, in asylum context, that

applicant must establish that a protected ground “was or will be at least one central

reason for persecuting the applicant”). Evidence of private violence, or that a

person would be the victim of criminal activity, “does not constitute evidence of

persecution on account of a statutorily protected ground.” Cendejas Rodriguez v.

U.S. Att’y Gen., 735 F.3d 1302, 1310 (11th Cir. 2013).

      A “particular social group” denotes a group of persons “who share a

common immutable characteristic that the members of the group either cannot


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change, or should not be required to change because it is fundamental to their

individual identities or consciences,” and such group cannot be “too numerous or

inchoate.” Id. (quotation marks omitted). An applicant must show either that he or

she would be singled out for persecution, or that there is a pattern or practice of

persecuting a group of similarly situated persons on account of a protected ground

and that the applicant is so identified with that group that it is more likely than not

that his life or freedom would be threatened if he or she returned. 8 C.F.R. §

208.16(b)(2)(i), (ii).

       To be eligible for CAT relief, the applicant must “establish that it is more

likely than not that he or she would be tortured if removed to the proposed country

of removal.” Id. § 208.16(c)(2). “Torture” is defined as

       any act by which severe pain or suffering, whether physical or mental,
       is intentionally inflicted on a person for such purposes as obtaining
       from him or her or a third person information or a confession,
       punishing him or her for an act he or she or a third person has
       committed or is suspected of having committed, or intimidating or
       coercing him or her or a third person, or for any reason based on
       discrimination of any kind, when such pain or suffering is inflicted by
       or at the instigation of or with the consent or acquiescence of a public
       official or other person acting in an official capacity.

Id. § 208.18(a)(1). Thus, to obtain CAT relief, the applicant must demonstrate that

torture would be inflicted by the government or with the government’s consent or

acquiescence. Sanchez, 392 F.3d at 438.




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      As an initial matter, to the extent that Hossain challenges the findings of the

BIA’s original order of removal, we lack jurisdiction to consider those claims.

Although Hossain filed a petition to review that order, we dismissed it for want of

prosecution in April 2018. That petition remains dismissed, and the 30-day

window to file a petition has since lapsed. Accordingly, we lack jurisdiction to

review the findings of the BIA in its original order of removal, specifically,

Hossain’s credibility.

      Moreover, the BIA did not abuse its discretion when it denied Hossain’s

motion to reopen his application for asylum or withholding of removal, because the

information he filed in support of his motion was available to him at the time of his

merits hearing, and thus, the BIA did not mischaracterize the evidence or

improperly give the affidavits Hossain submitted minimal weight. Furthermore,

the BIA did not hold Hossain to a higher burden of proof for his motion to reopen

by stating that Hossain did not establish that conditions in Bangladesh had

“significantly worsened or otherwise materially changed,” but rather, merely

reiterated the fact that Hossain failed to present new information in support of his

motion to reopen that was not previously available to him at his merits hearing.

Finally, in light of Hossain’s prior adverse credibility determination, which we lack

jurisdiction to review, and the fact that the material that Hossain submitted in

support of his motion to reopen was not new information that was previously


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unavailable, the BIA did not abuse its discretion in finding that he failed to

establish a prima facie case of withholding of removal or CAT relief based on new

and previously unavailable information. Accordingly, we deny the petition.

      PETITION DENIED.




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