         11-1024-ag
         Khutsishvili v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A096 021 873
                                  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 February, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       MARIAM KHUTSISHVILI,
14                Petitioner,
15
16                            v.                                11-1024-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                   H. Raymond Fasano, New York, New
24                                         York.
25
26       FOR RESPONDENT:                   Tony West, Assistant Attorney
27                                         General; James A. Hunolt, Senior
28                                         Litigation Counsel; Jesse Lloyd
29                                         Busen, Trial Attorney, Office of
 1                          Immigration Litigation, United
 2                          States Department of Justice,
 3                          Washington, D.C.

 4       UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   review is DENIED.

 8       Mariam Khutsishvili, a native and citizen of Georgia,

 9   seeks review of a February 17, 2011, decision of the BIA

10   denying her motion to reopen based on changed country

11   conditions, and affirming the March 9, 2010, decision of an

12   Immigration Judge (“IJ”) denying her motion to rescind her

13   in absentia removal order.     In re Mariam Khutsishvili, No.

14   A096 021 873 (B.I.A. Feb. 17, 2011), aff’g No. A096 021 873

15   (Immig. Ct. N.Y. City Mar. 9, 2010).     We assume the parties’

16   familiarity with the underlying facts and procedural history

17   of this case.

18       Khutsishvili challenges only the BIA’s denial, as

19   untimely, of her motion to reopen to apply for asylum,

20   withholding of removal, and relief under the Convention

21   Against Torture (“CAT”).     We review the BIA’s denial of

22   Khutsishvili’s motion to reopen for abuse of discretion.

23   Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).     When, as



                                     2
 1   here, the BIA considers relevant evidence of country

 2   conditions in evaluating a motion to reopen, we review the

 3   BIA’s factual findings under the substantial evidence

 4   standard.   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169

 5   (2d Cir. 2008).

 6       An alien may file only one motion to reopen and must do

 7   so within 90 days of the agency’s final administrative

 8   decision.   8 U.S.C. § 1229a(c)(7)(A),(C); 8 C.F.R.

 9   § 1003.2(c)(2).   Although Khutsishvili’s motion was

10   indisputably untimely because it was filed more than six

11   years after the IJ issued the removal order,

12   see 8 U.S.C. § 1229a(c)(7)(C)(i), there is no time

13   limitation for filing a motion to reopen to apply or reapply

14   for asylum if it is “based on changed country conditions

15   arising in the country of nationality or the country to

16   which removal has been ordered, if such evidence is material

17   and was not available and would not have been discovered or

18   presented at the previous proceeding.”   8 U.S.C.

19   § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

20       We find no abuse of discretion in the BIA’s denial of

21   the motion as untimely.   As an initial matter, the BIA

22   properly examined whether country conditions had changed



                                   3
 1   between the time of the Khutsishvili’s initial proceedings

 2   in 2003 and the submission of her motion to reopen in 2009.

 3   See Matter of S-Y-G-, 24 I&N Dec. 247, 253 (BIA 2007) (“[I]n

 4   determining whether evidence accompanying a motion to reopen

 5   demonstrates a material change in country conditions that

 6   would justify reopening, [the BIA] compare[s] the evidence

 7   of country conditions submitted with the motion to those

 8   that existed at the time of the merits hearing below”).

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

10   that Khutsishvili failed to establish a material change in

11   conditions in Georgia, as she failed to submit any evidence

12   in support of her motion describing Georgia’s treatment of

13   Jehovah’s Witnesses at the time of her 2003 proceedings.

14   See Matter of S-Y-G-, 24 I&N Dec. at 253.   Indeed, while

15   Khutsishvili submitted a 2009 State Department report

16   evaluating the status of religious freedom in Georgia and

17   two newspaper articles from 2009 describing incidents of

18   violence against Jehovah’s Witnesses in Georgia, she did not

19   submit any reports or articles that described the Georgian

20   government’s treatment of religious minorities, generally,

21   or Jehovah’s Witnesses, specifically, prior to 2009.

22



                                  4
 1       Furthermore, the BIA reasonably concluded that

 2   Khutsishvili had not established a material change in

 3   country conditions because the evidence in the record, the

 4   2009 U.S. Department of State International Religious

 5   Freedom Report for Georgia (“2009 Country Report”),

 6   indicated that “Jehovah’s Witnesses no longer considered it

 7   necessary to hold services in private homes for security

 8   reasons,” and “Jehovah’s Witnesses’ leaders reported that

 9   harassment at school of their children’s faith decreased

10   significantly during the reporting period.” See 8 U.S.C.

11   § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

12   Although Khutsishvili argues that the BIA erred by relying

13   exclusively on the positive statements in the report to find

14   no material change in conditions in Georgia, a reasonable

15   fact-finder would not be compelled to conclude that the BIA

16   ignored any negative findings, as the BIA expressly

17   acknowledged that the report indicated that “problems

18   exist[ed] for minority religious groups, including Jehovah’s

19   Witnesses.”   See Jian Hui Shao, 546 F.3d at 169 (noting that

20   the BIA does not need to expressly parse or refute every

21   piece of evidence submitted by the petitioner); Xiao Ji Chen

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

23   2006) (noting that this Court will “presume that [the BIA]
                                   5
 1   has taken into account all the evidence before [it], unless

 2   the record compellingly suggests otherwise”); see also Siewe

 3   v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“[W]here

 4   there are two permissible views of the evidence, the fact

 5   finder’s choice between them cannot be clearly erroneous.”).

 6   Finally, although the two newspaper articles Khutsishvili

 7   submitted described some incidents of violence directed at

 8   Jehovah’s Witnesses in Georgia, the BIA did not err in

 9   finding that Khutsishvili’s evidence, “on the whole,” did

10   not sufficiently establish a material change in country

11   conditions, as the 2009 Country Report indicated that

12   minority religious groups in Georgia, including Jehovah’s

13   witnesses, “expressed satisfaction with [the government’s]

14   commitment to protecting religious freedom.”   See Siewe, 480

15   F.3d at 167.

16       Because the record does not suggest that the BIA

17   ignored any evidence, and because substantial evidence

18   supports the BIA’s conclusion that Khutsishvili failed to

19   establish changed country conditions in Georgia, the BIA did

20   not abuse its discretion in denying her 2010 motion to

21   reopen as untimely.   See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.

22   § 1003.2(c)(2), (c)(3)(ii).

23

                                   6
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

4    is VACATED, and any pending motion for a stay of removal in

5    this petition is DISMISSED as moot. Any pending request for

6    oral argument in this petition is DENIED in accordance with

7    Federal Rule of Appellate Procedure 34(a)(2), and Second

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk




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