Gafurova v. Whitaker

• Decision Date: 18 December 2018
• Docket Number: No. 17-3712,17-3712
• Citation: 911 F.3d 321
• Parties: Gulnara GAFUROVA, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

911 F.3d 321

Gulnara GAFUROVA, Petitioner,

v.Matthew G. WHITAKER, Acting Attorney General, Respondent.

No. 17-3712

United States Court of Appeals, Sixth Circuit.

Decided and Filed: December 18, 2018

ON BRIEF: George P. Mann, Maris J. Liss, GEORGE P. MANN AND ASSOCIATES, Farmington Hills, Michigan, for Petitioner. Rachel L. Browning, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: GILMAN, KETHLEDGE, and BUSH, Circuit Judges.

OPINION

JOHN K. BUSH, Circuit Judge.

Gulnara Gafurova petitions for review of the order of the Board of Immigration Appeals ("Board" or "BIA") denying her motion to reopen her removal proceeding. At issue are the Board's determinations (1) that Gafurova did not present new evidence of changed country conditions in Uzbekistan; (2) that Yousif v. Lynch , 796 F.3d 622 (6th Cir. 2015), is not analogous to this case; (3) that because Gafurova did not seek to place under seal an opinion from the United States Court of Appeals for the Second Circuit affirming the denial of her asylum application, she may not use the publication of that opinion as a reason for reopening her removal proceeding; and (4) that Gafurova's present motion to reopen her removal proceeding would be decided by one member, as opposed to a three-member panel, of the Board. Because the Board applied the proper legal standards, substantial evidence supports its findings of fact, and the Board adhered to its relevant procedural rules in determining that a single member would decide the motion to reopen the removal proceeding, we DENY the petition for review.

I.

Gafurova is a native of the former Soviet Union and a citizen of Uzbekistan. She entered the United States on June 24, 2003, as a nonimmigrant visitor with authorization to remain for a temporary period, until December 21, 2003. She remained in the United States without authorization and filed an application for Asylum and Withholding of Removal on June 14, 2004. Three months later, the Department of Homeland Security commenced removal proceedings against Gafurova, and during those proceedings, she conceded the charge of removability.

On May 4, 2005, the Immigration Judge denied Gafurova's asylum application and ordered her removal to Uzbekistan. Gafurova appealed that decision to the Board, which remanded the case to the Immigration Judge on January 12, 2007. On remand, the Immigration Judge again denied Gafurova's asylum application and determined that it was frivolous. Gafurova appealed the Immigration Judge's decision, and on October 26, 2010, the Board denied Gafurova's appeal but reversed the Immigration Judge's frivolity determination. Gafurova subsequently filed a petition with the Second Circuit to review the Board's decision dated October 26, 2010. The Second Circuit denied that petition. See Gafurova v. Holder , 448 F. App'x 139, 140–41 (2d Cir. 2011).

On January 21, 2011, Gafurova moved to reopen her removal proceeding with the Board because of a pending visa petition filed on her behalf by her husband. The Board granted Gafurova's motion to reopen and remanded her case to the Immigration Judge on June 23, 2011.¹ On July 14, 2011, Gafurova filed an application for adjustment of status.

On February 6, 2014, the Immigration Judge denied Gafurova's application for adjustment of status because she had previously filed a frivolous asylum application and she was ineligible for relief under the applicable statutes and regulations. She appealed the Immigration Judge's determination and, on November 30, 2015, the Board granted her appeal. The Board determined that the Immigration Judge erroneously concluded that the asylum application was frivolous and remanded the case to the Immigration Judge to reconsider whether any additional bars to relief applied to her case.

After remand, the Department of Homeland Security submitted evidence that Gafurova's January 2011 visa petition was revoked and she was no longer eligible to seek an adjustment of status. Soon after, Gafurova moved to change venue to New York so that she could file a second asylum application. Gafurova argued two bases for her second asylum application: (1) she converted to Christianity in 2011; and (2) she would be viewed as a traitor in Uzbekistan because information is publicly available that she filed for asylum in the United States. See, e.g. , Gafurova , 448 F. App'x at 140–41.

On January 27, 2016, the Immigration Judge denied Gafurova's motion to change venue, found her statutorily barred from filing a second asylum application, and ordered her to be removed to Uzbekistan. Gafurova filed an appeal of the Immigration Judge's decision, and the Board dismissed that appeal in a final written decision on November 10, 2016. Gafurova timely filed a petition with this court to review the Board's decision dated November 10, 2016.

While Gafurova's petition was pending before our court, Gafurova again moved to reopen her removal proceeding, on February 8, 2017. It is the Board's determination of this motion that is the subject of our review. In support of her second motion to reopen her removal proceeding and on reply, Gafurova argued (1) "changed circumstances in Uzbekistan since the [Immigration Judge] denied Ms. Gafurova's request for a hearing and her motion to file a second asylum application;" and (2) "new law pertaining to asylum from the [6th] Circuit Court of Appeals regarding applications for asylum based solely upon ‘well-founded fear’ of prospective, future persecution." A.R. at 85. To support her argument of alleged changed circumstances in Uzbekistan, Gafurova presented evidence that asylum-seekers are regularly tortured in Uzbekistan.

Gafurova also argued that Yousif v. Lynch , 796 F.3d 622, required remand of her asylum case and that there was a "discretionary factor favoring granting the motion to reopen" because the Government breached its duty of confidentiality when the Second Circuit published its summary opinion. Lastly, Gafurova requested that a three-member panel decide her motion.

On June 6, 2017, the Board, acting through a single member, denied Gafurova's motion to reopen her removal proceeding. The Board ruled that Gafurova failed to provide new evidence of changed country conditions in Uzbekistan because she provided "no sufficient explanation that these are new facts since May 2013 [that] could not have been discovered or presented at her previous hearing." A.R. at 4–5. The Board also concluded that "the public disclosure of the decision in her case by the Second Circuit" did not "violate[ ] the asylum confidentiality within the meaning of the regulations" and determined that Gafurova's motion did not warrant a remand in view of Yousif because the facts of that case were readily distinguishable from Gafurova's circumstances. Id. And lastly, the Board summarily denied Gafurova's request for a three-member panel.

Gafurova's timely petition to this court followed.

II.

A. Standard of Review

We review the Board's denial of a motion to reopen immigration proceedings for abuse of discretion. Trujillo Diaz v. Sessions , 880 F.3d 244, 248 (6th Cir. 2018) (citing Alizoti v. Gonzales , 477 F.3d 448, 451 (6th Cir. 2007) ). We will find an abuse of discretion if the Board's denial "was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group." Allabani v. Gonzales , 402 F.3d 668, 675 (6th Cir. 2005) (citation omitted). In determining whether the Board abused its discretion, we look only at "the basis articulated in the decision and [we] may not assume that the Board considered factors that it failed to mention in its opinion." Daneshvar v. Ashcroft , 355 F.3d 615, 626 (6th Cir. 2004). We may not reverse simply because we "would have decided the case differently." Lin v. Holder , 565 F.3d 971, 976 (6th Cir. 2009). Instead, we reverse only if the evidence compels a contrary conclusion. Id. Further, all "[l]egal issues are reviewed de novo." Harchenko v. INS , 379 F.3d 405, 409 (6th Cir. 2004).

B. Discussion

Motions to reopen removal proceedings are often "disfavored" in view of the "strong public interest in the finality of removal orders." Trujillo Diaz , 880 F.3d at 249. As the Supreme Court has noted, "[g]ranting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case." INS v. Wang , 450 U.S. 139, 143 n.5, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981). Thus, "[t]he party filing a motion to reopen bears a heavy burden." Harchenko , 379 F.3d at 410.

Under the applicable statutory and regulatory scheme, motions to reopen are subject to temporal and numerical limits. See 8 U.S.C § 1229a(c)(7)(A), (C) ; 8 C.F.R. § 1003.2(c). An asylum applicant is limited to one motion to reopen. 8 C.F.R. § 1003.2(c)(2). There is, however, an exception to this numerical requirement for motions "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." 8 U.S.C. § 1229a(c)(7)(A), (C) ; 8 C.F.R. § 1003.2(c)(3). Because this is Gafurova's second motion to reopen, it is subject to the exception for changed country conditions.

The Supreme Court has identified "at least three independent grounds on which the BIA might deny a motion to reopen—failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought." Zhang v. Mukasey , 543 F.3d 851, 854 (6th Cir. 2008) (quoting INS v. Doherty , 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) ). When...