     Case: 12-60736       Document: 00512351026         Page: 1     Date Filed: 08/22/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 22, 2013
                                     No. 12-60736
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

BENJAMIN ASFAW, also known as Benjamin Bekele Asfaw,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A094 896 716


Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Benjamin Asfaw, a native and citizen of Ethiopia, petitions for review of
the Board of Immigration Appeals’ (BIA) dismissing his appeal from the
Immigration Judge’s denying his motion to reopen. Asfaw contends his active
participation in an opposition political party while living in the United States,
and changed conditions in Ethiopia regarding its government’s intensified
targeting and repression of opposition political groups, entitles him to a new
removal proceeding.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-60736     Document: 00512351026     Page: 2   Date Filed: 08/22/2013

                                  No. 12-60736

      The denial of a motion to reopen is reviewed “under a highly deferential
abuse-of-discretion standard”, Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005), and will be affirmed “so long as it is not capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational approach”, id. at 304
(internal quotations marks and citation omitted).
      An alien must file a motion to reopen within 90 days of the date on which
the final administrative decision is entered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8
C.F.R. § 1003.2(c)(2). Asfaw’s motion to reopen, filed more than four years after
the BIA’s decision, was untimely. A motion to reopen is not barred by this
timing requirement, however, if the alien’s request for relief “is based on
changed country conditions arising in the country of nationality or the country
to which removal has been ordered, if such evidence is material and was not
available and would not have been discovered or presented at the previous
proceeding”.   § 1229a(c)(7)(C)(ii); see also § 1003.2(c)(3)(ii).   To determine
whether there has been a material change in country conditions, the evidence
of such conditions submitted with the motion is compared to those existing at the
time of the merits hearing. E.g., Panjwani v. Gonzales, 401 F.3d 626, 633 (5th
Cir. 2005). An alien must also show prima facie eligibility for relief from
removal. INS v. Abudu, 485 U.S. 94, 104 (1988).
      Asfaw asserts the evidence filed in support of his motion to reopen shows
conditions in Ethiopia have deteriorated since his initial hearing, and its
government has more intensively sought to detain, prosecute, and abuse
opposition political groups by, inter alia, passing an antiterrorism law that is
being used as a pretext to limit political dissent. Given the Ethopian political
climate, Asfaw also asserts his political activism in the United States, and the
resulting detention and questioning of his sister by police in Ethiopia, supports
his contending that his active membership in an opposition political party would
cause him to be targeted if he returned.

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    Case: 12-60736     Document: 00512351026     Page: 3   Date Filed: 08/22/2013

                                  No. 12-60736

      Asfaw’s evidence, which shows the ruling government of Ethiopia
historically has intimidated, kidnapped, abused, arbitrarily detained, harassed,
and committed violence against opposition political groups, does not establish
a material change in Ethiopian country conditions since his initial merits
hearing. He fails to show the conditions at the time of his motion to reopen were
not a continuation of the government’s efforts to restrict political dissent, and
the antiterrorism law was not simply a new instance of efforts to stifle political
opposition. Finally, his political activities in the United States and the related
detention and interrogation of his sister in Ethiopia reflect a change in personal
circumstances, not in country conditions. Zhao, 440 F.3d at 407.
      Because the BIA did not abuse its discretion by ruling Asfaw failed to
establish changed country conditions, we need not consider whether he
established prima facie eligibility for relief from removal.
      DENIED.




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