                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 9 2004
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JEMILA EBRAHIM HABIB,

                Petitioner,

    v.                                                   No. 03-9525
                                                    (BIA No. A79-512-896)
    JOHN ASHCROFT, Attorney General                  (Petition for Review)
    of the United States,

                Respondent.


                              ORDER AND JUDGMENT          *




Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Petitioner Jemila E. Habib seeks review of a Board of Immigration Appeals

(BIA) order that summarily affirmed the denial of her requests for asylum,

withholding of removal, and protection under the Convention Against Torture,

and implicitly denied her motion to remand to the Immigration Judge (IJ) for

consideration of new evidence. She raises several issues, many relating in one

way or another to the BIA’s use of the streamlined review procedure set out in

8 C.F.R. § 1003.1(a)(7), to which she strongly objects.   1
                                                              For reasons explained

below, we reject these contentions and deny the petition for review.

       Petitioner is a citizen of Ethiopia. She entered the United States without

inspection in August 2001 and two months later filed an application for asylum

and withholding of removal on the basis of political persecution. She alleged she

is a member of the All-Amharic People’s Organization (AAPO), a political group

in which her father held a prominent position. She claimed that in April 2001 she

participated in student demonstrations at Addis Ababa University, after which she

was arrested and detained for twenty days under abusive conditions. Upon her

release, she left the country and illegally entered the United States.


1
       As a general matter, to the extent petitioner challenges the summary
procedure as improper per se, her objection is foreclosed by   Yuk v. Ashcroft , 355
F.3d 1222, 1232 (10 th Cir. 2004). To the extent she argues that various errors by
the IJ just precluded its application here, “we are able to review the BIA
member’s decision to decide this case under [the streamlined procedure],” but
“[a]s our review of the merits of petitioner’s case will reveal, we find no error in
that decision.” Batalova v. Ashcroft , 355 F.3d 1246, 1253 (10 th Cir. 2004).

                                            -2-
      The IJ questioned petitioner about matters she would be expected to know

given her factual allegations. But she was unable to provide, for example, names

of prominent figures in the AAPO and information about the April 2001 student

demonstrations. Citing this problem with her testimony, as well as her lack of

documentation reflecting her membership in the AAPO and attendance at Addis

Ababa University, the IJ concluded that petitioner had failed to demonstrate the

political persecution alleged in support of her requests for relief.

      Petitioner appealed to the BIA. In addition to an untimely brief, which the

BIA rejected, she filed a motion to remand to the IJ for consideration of two new

documents she had obtained: a photocopy of what appears to be her Addis Ababa

University identification and an unsworn letter from a North American AAPO

representative confirming her membership. The BIA summarily affirmed the IJ’s

decision without mentioning the remand motion or the attached evidence.

      Petitioner claims the BIA erred in affirming the IJ without considering the

new evidence. The BIA “operates as an appellate body and its practice therefore

is not to accept a tender of evidence . . . but instead, if it thinks the new evidence

might change the outcome, to remand the case to the [IJ].”       Reyes-Hernandez v.

INS , 89 F.3d 490, 494 (7 th Cir. 1996) (citations omitted). A remand will not be

granted, however, unless the evidence “‘was not available and could not have

been discovered or presented    at the former hearing.’”     Dulane v. INS , 46 F.3d


                                           -3-
988, 994 (10 th Cir. 1995) (quoting 8 C.F.R. § 3.2, now 8 C.F.R. § 1003.2)). It

appears petitioner’s new evidence was obtainable from the outset. In any event,

she did not argue otherwise to the BIA. We will not disturb agency action on

grounds inadequately developed in administrative proceedings.      Rivera-Zurita v.

INS , 946 F.2d 118, 120 n.2 (10   th Cir. 1991) (“Judicial review does not extend to

points the alien could have made before the [BIA] but did not.”).

       Petitioner also contends the BIA denied her due process by failing to accept

her new evidence. “[I]ndividuals subject to deportation are entitled to procedural

due process, which provides an opportunity to be heard at a meaningful time and

in a meaningful manner.”     Woldemeskel v. INS , 257 F.3d 1185, 1192-93 (10   th Cir.

2001) (quotation omitted). Accordingly, the BIA may not categorically deny all

opportunity to supplement the evidentiary record.    Ramirez-Alejandre v. Ashcroft     ,

320 F.3d 858, 873 ( 9th Cir. 2003). “Of course, the BIA is not obligated to accept

all materials tendered by a party after an immigration hearing. Agencies are

afforded wide latitude in the formulation of administrative procedure. The BIA

may place appropriate restrictions . . . and set standards for relevancy and

admissibility.”   Id. at 872-73. The regulation discussed above sets a reasonable

standard for admission of new evidence. Again, in the absence of a properly

developed and preserved argument addressed to this standard, petitioner is not

entitled to relief here.


                                           -4-
      Finally, petitioner challenges the IJ’s decision on the merits. In particular,

she takes issue with the IJ’s emphasis on her lack of supporting documentation

and her ignorance of key figures in relevant political activities. Petitioner is in no

position to complain about the IJ’s expectations regarding documentation that

was, in fact, obtainable and should have been offered in support of her claims.

And a review of the hearing transcript undercuts her excuse that she could not

identify the political figures because of mispronunciation/mistranslation of their

names–she was not simply confronted with unfamiliar names, she was unable to

supply names she could be expected to know. We cannot say the IJ’s decision

“was contrary to what a reasonable factfinder would have been compelled to

conclude,” and, hence, we must affirm.    Vatulev v. Ashcroft , 354 F.3d 1207, 1211

(10 th Cir. 2003).

      The petition for review is DENIED.



                                                     Entered for the Court



                                                     Stephanie K. Seymour
                                                     Circuit Judge




                                          -5-
