Tawadrous v. Holder

• Decision Date: 07 May 2009
• Docket Number: No. 08-1376.,08-1376.
• Citation: 565 F.3d 35
• Parties: Ashraf Ishak Wasilidas TAWADROUS, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

565 F.3d 35

Ashraf Ishak Wasilidas TAWADROUS, Petitioner, v. Eric H. HOLDER, Jr.,^* Attorney General, Respondent.

No. 08-1376.

United States Court of Appeals, First Circuit.

Submitted April 6, 2009.

Decided May 7, 2009.

Saher J. Macarius, Audrey Botros and Law Offices of Saher J. Macarius, on brief for petitioner.

Gregory G. Katsas, Assistant Attorney General, Civil Division, Michelle Gorden Latour, Assistant Director and Joseph A. O'Connell, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, on brief for respondent.

Before BOUDIN and LIPEZ, Circuit Judges, and SINGAL,^** District Judge.

SINGAL, District Judge.

Petitioner Ashraf Ishak Wasilidas Tawadrous seeks review of the Board of Immigration Appeals' ("BIA") denial of his untimely motion to reopen removal proceedings. The BIA concluded that the evidence proffered by Tawadrous in support of his motion did not establish changed conditions in Egypt, his country of origin. Discerning no abuse of discretion in the BIA's order, we deny the petition.

I.

Tawadrous, a Coptic Christian, was admitted to the United States on December 24, 1999, with authorization to remain until November 30, 2001. He overstayed his visa. Consequently, Tawadrous was served with a Notice to Appear in removal proceedings, which commenced on September 4, 2002. At a hearing before an Immigration Judge ("IJ"), Tawadrous admitted the factual allegations contained in the Notice to Appear, conceded removability, and applied for asylum, withholding of removal, and protection under the Convention Against Torture. Testifying in support of his application, Tawadrous described a series of hostile encounters with Muslims while attending high school in his hometown and college in Cairo; being beaten severely by a group of Muslims after responding to their greeting with a traditional Christian reply; and a threatening rumor that he had impregnated a Muslim woman, which precipitated Tawadrous's immediate departure to the United States in 1999.

On March 15, 2005, the IJ concluded that Tawadrous had "failed to establish either a well-founded fear of persecution, a clear probability of persecution or a clear probability [of] torture in his home country," and thus denied the application. The IJ discounted Tawadrous's testimony regarding the beating as inconsistent with his American medical records. Moreover, the IJ determined that Tawadrous could relocate internally within Egypt to Cairo. Finally, the IJ found that Tawadrous had failed to demonstrate a likelihood that he would be tortured by anyone.

Tawadrous appealed the IJ's decision to the BIA, which affirmed without opinion on June 6, 2006. He then filed a petition for review in this court. Finding that the IJ's adverse credibility determination was adequately supported by the record, we denied the petition on April 3, 2007.

On October 22, 2007, more than sixteen months after the BIA rendered its summary affirmance, Tawadrous filed a motion to reopen his removal proceedings. Although such motions must typically be filed within ninety days of a final administrative decision, Tawadrous invoked an exception for motions that seek to introduce previously unavailable, material evidence of changed country conditions. Specifically, he submitted a letter from his father, who claimed that a "death sentence" awaits Tawadrous in Egypt. Tawadrous maintained that the letter was previously unavailable due to his father's fear of the Egyptian government, and became available only after an individual named George E. George assured Tawadrous's father that it would be transported by hand to the United States. Tawadrous also offered recent State Department Reports and news articles.

On February 21, 2008, the BIA denied Tawadrous's motion to reopen as untimely. It concluded that the materials submitted did not demonstrate a material change in country conditions. Moreover, because Tawadrous had not submitted any evidence regarding the letter's method of transportation, such as an affidavit from George, the BIA found that the letter was not previously unavailable.

On March 24, 2008, Tawadrous filed the instant petition for review of the BIA's denial of his motion to reopen. That same day, he also filed a motion to reconsider with the BIA. In an effort to cure the infirmity previously diagnosed by the BIA, Tawadrous submitted an unauthenticated photocopy of a statement by George, among other materials. He did not, however, identify any material factual or legal errors that might justify reconsideration, and on July 22, 2008, the BIA denied the motion accordingly. Notably, Tawadrous never filed a petition for review challenging this decision; thus, we lack jurisdiction to review the BIA's denial of Tawadrous's motion to reconsider or to examine any materials submitted with it.¹ Ven v. Ashcroft, 386 F.3d 357, 359 (1st Cir.2004) (describing the need to timely appeal as a "strict jurisdictional requirement").

II.

Motions to reopen removal proceedings, which seek to introduce previously unavailable, material evidence, "are disfavored due to the strong public interest in concluding litigation." Ratnasingam v. Holder, 556 F.3d 10, 15 (1st Cir. 2009); see Ven, 386 F.3d at 361 (alien seeking reopening bears a "heavy burden"). "Consequently, the BIA enjoys a broad measure of latitude in passing upon such motions," Lemus v. Gonzales, 489 F.3d 399, 401 (1st Cir.2007), and we review its decision exclusively for abuse of discretion. Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir.2008). The BIA's denial of a motion to reopen will be upheld "unless the complaining party can show that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way." Tandayu, 521 F.3d at 100 (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.2007)).

Typically, a motion to reopen must be filed within ninety days of a final administrative decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the BIA may waive "temporal bars to reopening if an alien makes a convincing demonstration of changed conditions in his homeland." Raza, 484 F.3d at 127; see 8 C.F.R. § 1003.2(c)(3)(ii). These changes must relate "to the underlying substantive relief that the alien is seeking," Raza, 484 F.3d at 127, and must be documented by material evidence that was previously unavailable. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(1), (3)(ii). Crucially, this evidence must demonstrate the intensification or deterioration of country conditions, not their mere continuation. See Tandayu, 521 F.3d at 100; Lemus, 489 F.3d at 401.

III.

Tawadrous asserts that the BIA abused its discretion in concluding that the changed-conditions exception did not warrant reopening....