         09-3341-ag
         Tikhonova v. Holder
                                                                                       BIA
                                                                               A077 571 902
                                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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 22nd day of October, two thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                PETER W. HALL,
10                    Circuit Judges.
11       _______________________________________
12
13       LARISSA MIKHAILOVNA TIKHONOVA,
14                Petitioner,
15
16                             v.                               09-3341-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                 Alexander Tsiring, Brooklyn, New
24                                       York.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General, Ernesto H. Molina, Jr.,
28                                       Assistant Director, Drew C.
29                                       Brinkman, Trial Attorney, Office of
30                                       Immigration Litigation, Civil
31                                       Division, United States Department
32                                       of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED in part and DISMISSED in part.

 5       Petitioner Larissa Mikhailovna Tikhonova, a native of

 6   the former U.S.S.R. and citizen of Russia, seeks review of

 7   the July 10, 2009, order of the BIA denying her second

 8   motion to reopen.   In re Larissa Mikhailovna Tikhonova, No.

 9   A 077 571 902 (B.I.A. July 10, 2009).       We assume the

10   parties’ familiarity with the underlying facts and

11   procedural history of the case.

12       I.   Scope of Review

13       As a preliminary matter, in her briefs, Tikhonova

14   attempts to challenge all of the decisions the agency

15   rendered in the course of her proceedings.       However, we lack

16   jurisdiction to review Tikhonova’s challenges to the BIA’s

17   June 2008 decision because she did not file a timely

18   petition for review of that decision.       See Kaur v. BIA, 413

19   F.3d 232, 233 (2d Cir. 2005).       Additionally, we lack

20   jurisdiction to review both the IJ’s November 2002 decision

21   and the BIA’s February 2004 decision because we have already

22   once dismissed Tikhonova’s petition for review of those

23   decisions. Thus, we limit our review to Tikhonova’s

24   challenge to the denial of her second motion to reopen.

                                     2
 1       II.    The BIA’s July 2009 Decision

 2       The BIA did not abuse its discretion in denying

 3   Tikhonova’s untimely and number-barred motion to reopen.

 4   See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).        The

 5   regulations provide that “a party may file only one motion

 6   to reopen deportation or exclusion proceedings . . . and

 7   that motion must be filed no later than 90 days after the

 8   date on which the final administrative decision was rendered

 9   in the proceeding sought to be reopened, or on or before

10   September 30, 1996, whichever is later.”     8 C.F.R.

11   § 1003.2(c)(2).     Indisputably, Tikhonova’s January 2009

12   motion was untimely and number-barred.     However, the time

13   limitations do not apply if the alien can establish

14   materially “changed circumstances arising in the country of

15   nationality.”     8 C.F.R. § 1003.2(c)(3)(ii). Additionally,

16   the time and numerical limitations may be equitably tolled

17   to accommodate claims of ineffective assistance of counsel.

18   See Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).

19       A.    Changed Country Conditions

20        The BIA reasonably found that Tikhonova’s decision to

21   become a Baptist was a changed personal circumstance, not a

22   changed country condition.     See Yuen Jin v. Mukasey, 538

23   F.3d 143, 155 (2d Cir. 2008); Wei Guang Wang v. BIA, 437

                                     3
 1   F.3d 270, 274 (2d Cir. 2006).       Moreover, we find no merit in

 2   Tikhonova’s argument that the BIA ignored the evidence she

 3   submitted in concluding that she did not otherwise

 4   demonstrate changed country conditions.       We have rejected

 5   the notion that the agency “must expressly parse or refute

 6   on the record each individual argument or piece of evidence

 7   offered by the petitioner.”     Wei Guang Wang, 437 F.3d at 275

 8   (internal quotation marks omitted); see also Xiao Ji Chen v.

 9   U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)

10   (noting that the Court “presume[s] that [the agency] has

11   taken into account all of the evidence before [it], unless

12   the record compellingly suggests otherwise.”).

13       Moreover, to the extent Tikhonova relies on the 2009

14   Department of State Report, that document was not submitted

15   to the BIA. Therefore, we decline to consider it in the

16   first instance.   8 U.S.C. § 1252(b)(4)(A); Xiao Xing Ni v.

17   Gonzales, 494 F.3d 260, 265-66 (2d Cir. 2007).

18       As to the BIA’s finding that the evidence submitted in

19   support of the motion to reopen was insufficient to

20   demonstrate that country conditions had changed with respect

21   to the treatment of Baptists in Russia, we find that

22   determination to be supported by substantial evidence


                                     4
 1   because, as the BIA found, the evidence submitted identified

 2   only isolated attacks and did not establish that Baptists

 3   were treated differently than they had been at the time of

 4   Tikhonova’s original proceedings.   See Jian Hui Shao v.

 5   Mukasey, 546 F.3d 138 (2d Cir. 2008) (holding that this

 6   Court reviews the BIA’s fact-finding regarding changed

 7   country conditions “only for substantial evidence.”).      Nor,

 8   for similar reasons, did the BIA err in determining that

 9   Tikhonova failed to establish her prima facie eligibility

10   for relief.   See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d

11   Cir. 2005).

12   B.   Ineffective Assistance

13        The BIA also did not abuse its discretion in declining

14   to equitably toll the filing deadline for Tikhonova’s motion

15   to reopen because, as it found, even assuming that her

16   motion was timely and she had satisfied the requirements set

17   forth in Matter of Lozada, reopening was not warranted

18   because at her merits hearing she waived any opportunity to

19   apply for withholding of removal and CAT relief.   See Kaur,

20   413 F.3d at 233 (“An abuse of discretion may be found in

21   those circumstances where the Board’s decision provides no

22   rational explanation, inexplicably departs from established


                                   5
 1   policies, is devoid of any reasoning, or contains only

 2   summary or conclusory statements; that is to say, where the

 3   Board has acted in an arbitrary or capricious manner.”)

 4   (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,

 5   93 (2d Cir. 2001)).     Although Tikhonova argues that such

 6   waiver was not voluntary, that argument is belied by the

 7   record.     The BIA also found that Tikhonova failed to

 8   demonstrate that she was prejudiced by her prior attorneys’

 9   representation.     Romero v. INS, 399 F.3d 109, 112 (2d Cir.

10   2005); Matter of Assaad, 23 I & N Dec. 553 (BIA 2003).

11   Tikhonova does not challenge that finding, waiving any such

12   argument.     Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1,

13   545 n.7 (2d Cir. 2005).

14       For the foregoing reasons, the petition for review is

15   DENIED in part and DISMISSED in part.     As we have completed

16   our review, any stay of removal that the Court previously

17   granted in this petition is VACATED, and any pending motion

18   for a stay of removal in this petition is DISMISSED as moot.

19   Any pending request for oral argument in this petition is

20   DENIED in accordance with Federal Rule of Appellate

21   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk
24
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