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                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-13865
                        Non-Argument Calendar
                      ________________________

                        Agency No. A088-150-956



BAKHODIR SABITOVICH MADJITOV,

                                                                        Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                            (September 14, 2020)

Before JILL PRYOR, BRANCH, and LAGOA, Circuit Judges.

PER CURIAM:
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      Bakhodir Madjitov seeks review of an order of the Board of Immigration

Appeals (“BIA”) denying his motion to reopen removal proceedings as untimely,

pursuant to Immigration and Nationality Act (“INA”) §240(c)(7)(C)(i), 8 U.S.C.

§ 1229a(c)(7)(C)(i). The BIA concluded that Madjitov failed to establish any

exception to the filing deadline because he had not shown that country conditions

in Uzbekistan materially changed since his merits hearing in 2013. It also

concluded that he had not shown that he was prima facie eligible for asylum under

INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3),

8 U.S.C. § 1231(b)(3), or withholding of removal under the United Nations

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (“CAT”), 8 C.F.R. § 208.16(c). Madjitov argues on appeal that the

BIA incorrectly decided these questions because the evidence he submitted

demonstrated both a prima facie case for asylum, withholding of removal, and

CAT relief, and also that his evidence demonstrates material changed country

conditions. After review, we affirm of the BIA, and dismiss in part and deny in

part the petition for review.

                                  I.    Background

      Madjitov, a native and citizen of Uzbekistan, entered the United States in

March 2006 on a temporary visa. After his visa expired, he filed an application for

asylum, withholding of removal, and CAT protection on January 3, 2007, alleging

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that he was persecuted on the basis of political opinion and membership in a

particular social group. He stated that he had been arrested, detained, and beaten

by the police in May 2005 for participating in a peace demonstration, and

threatened and attacked in June 2005 for believing in democracy, and he feared he

would be arrested and harmed by the police if he was returned to Uzbekistan.

       In January 2007, the Department of Homeland Security (“DHS”) served

Madjitov with a notice to appear, which charged that he was removable for

overstaying his visa, pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).

Madjitov conceded removability as charged, indicated that he wished to apply for

asylum, withholding of removal, and CAT relief, and submitted a supplement to

his application for relief. The immigration judge (“IJ”) ultimately denied his

applications in May 2013 after finding he was not credible and that he failed to

provide sufficient corroborating evidence.1 In July and October of 2014, the BIA

dismissed Madjitov’s appeal and denied his motion for reconsideration. Madjitov

did not seek judicial review.

       In January 2018, Madjitov, through counsel, filed a motion asking the BIA

to reopen proceedings sua sponte in order to allow him to adjust his status to that

of lawful permanent resident based on hardship to his family. Madjitov submitted



       1
        The original decision of the IJ was issued in 2011 but was missing a portion of the IJ’s
reasoning. The IJ reissued a full decision upon remand from the BIA.
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documents to the agency during his proceedings indicating that he married his

wife, Madina Mamadjonova, in July 2012; she later became a U.S. citizen in April

2015; and they resided with their children in Connecticut. Madjitov also submitted

documents indicating that U.S. Citizenship and Immigration Services (“USCIS”)

had approved an I-130 petition for alien relative in 2013 filed by Madjitov’s wife

on his behalf. In October 2016, Madjitov filed an I-485 application to adjust his

status to that of legal permanent resident. He was detained on December 22, 2017

and moved to the Etowah County Detention Center in Alabama.

      Soon after, in March 2018, Madjitov retained new counsel and submitted an

amended motion to reopen based on changed conditions in Uzbekistan, along with

a motion for a stay of removal. He argued that increased surveillance in

Uzbekistan and its practice of persecuting family members of suspected terrorists,

coupled with the public investigation into one of his brothers-in-law’s affiliation

with an ISIS affiliate, warranted reopening. In support of his amended motion,

Madjitov submitted a new asylum application based on religion, political opinion,

and membership in a particular social group; a December 2017 Department of

Justice press release about the arrest of his brother-in-law for lying about

knowledge of his brother who was a member of a group affiliated with ISIS; 2015

and 2017 reports by Amnesty International (“Amnesty reports”) documenting use

of surveillance and torture by the Uzbekistani government; and the U.S. State
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Department’s 2016 Human Rights Report for Uzbekistan (“Country Report”). The

Department of Justice press release indicated that, on the same day Madjitov was

detained by immigration authorities, federal authorities arrested his brother-in-law,

Sidikjon Mamadjonov, and charged him with unlawful procurement of

naturalization by lying about his sibling’s connection with an ISIS affiliate.

       In May 2018, the BIA denied Madjitov’s January 2018 motion to reopen for

family hardships as untimely because he failed to establish any exception to the

filing deadline and, it concluded, becoming eligible for legal permanent resident

status was not an extraordinary reason to reopen his filing deadline. The BIA did

not address Madjitov’s March 2018 amended motion.

       On May 30, 2018, Madjitov, through counsel, again moved the BIA to

reopen his proceedings based on changed country conditions in Uzbekistan, using

the same unaddressed claims and evidence from his amended motion to reopen in

March 2018.2

       In September 2019, the BIA denied Madjitov’s May 2018 motion to

reopen. 3 The BIA concluded that Madjitov had not demonstrated materially

       2
         In June 2019, Madjitov also filed a pro se supplement to the motion, arguing that the
Third Circuit had published relevant intervening precedent and that he feared persecution based
on his Salafi Muslim faith, which he described as a “strict” form of Islam, and the Uzbekistani
government incorrectly associated these religious beliefs with terrorism.
       3
        As an initial matter, the BIA stated that it would not treat Madjitov’s motion to reopen
as number-barred, as it was “unclear what happened [to] the March 6, 2018, filing” submitted to
the BIA as an amendment to his first motion to reopen.
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changed country conditions or circumstances since the time of his 2013 merits

hearing. First, it stated, “[t]he background evidence indicates that for the past 15

years, the Uzbekistan government has been ‘clamping down’ on suspected

members and sympathizers of Islamic groups, and targeting entire families.” As

such, it reasoned, Madjitov had not shown changed country conditions since 2013

“with respect to Uzbekistan government’s treatment of Islamic terrorists or other

religious extremists.” The BIA concluded that Uzbekistan’s increased online

surveillance of citizens at home and abroad was not a changed country condition or

circumstance “material to his claim.” It reasoned, “[g]iven changes in technology

and surveillance, as well as world-wide concerns with terrorist attacks, such efforts

at law enforcement are not the type of change contemplated by the statute or

regulations, as it [sic] does not signify an increase in government-based

persecution on account of a protected ground.”

      Third, it stated that Madjitov had not shown he was prima facie eligible for

relief because he had not submitted any evidence that he would be personally

targeted if returned to Uzbekistan, as he had not submitted any evidence that his

relatives or his wife’s relatives had been harmed as a result of the activities of his

wife’s deceased brother.

      Finally, the BIA declined to grant his motion to reopen based on his

supplemental filing because he did not submit a new asylum application based on
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the claim, and because his translated evidence was not certified. It also concluded

that his motion did not demonstrate an exceptional situation that would warrant the

exercise of its discretion to reopen proceedings under its sua sponte authority.4

This petition for review followed.

                                   II.    Standard of Review

       We review the BIA’s denial of a motion to reopen removal proceedings for

abuse of discretion, which is limited to determining whether the BIA exercised its

discretion in an arbitrary or capricious manner. Zhang v. U.S. Att’y Gen., 

, 1319 (11th Cir. 2009). Where a petitioner challenges the BIA’s

nondiscretionary grounds for denying a motion to reopen, we remand only if the

BIA has not given “reasoned consideration” of a question or made “adequate

findings.” Bing Quan Lin v. U.S. Att’y Gen., 

, 874 (11th Cir. 2018).

The BIA must consider the issues raised and announce its decision in terms

sufficient to enable a reviewing court to “perceive that it has heard and thought and

not merely reacted.” Jeune v. U.S. Att’y Gen., 

, 803 (11th Cir. 2016)

(quotation marks omitted). The immigration judge’s factual findings are

considered “conclusive unless a reasonable factfinder would be compelled to



       4
         In November 2019, Madjitov filed a 28 U.S.C. § 2241 petition for habeas relief in the
U.S. District Court for the District of Connecticut, arguing that he had a constitutional due
process right to complete a “provisional unlawful presence waiver of inadmissibility,” pursuant
to 8 C.F.R. § 212.7(e), which the district court dismissed for lack of jurisdiction.
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conclude to the contrary.” Lonyem v. U.S. Att’y Gen., 

, 1340 (11th

Cir. 2003).

      We determine our own subject matter jurisdiction de novo. Guzman-Munoz

v. U.S. Att’y Gen., 

, 1313 (11th Cir. 2013).

                                   III.   Discussion

   A. Madjitov Did Not Demonstrate a Material Change in Country Conditions

      Generally, an alien must file a motion to reopen his removal proceedings

within 90 days of the date of entry of a final administrative order of removal,

subject to certain exceptions. 

; INA § 240(c)(7)(C)(1),

8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). As relevant here, the INA

provides for an exception to the time limitation if the motion to reopen is “based on

changed circumstances 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.” INA

§ 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii); Jiang v. U.S. Att’y Gen., 

, 1256 (11th Cir. 2009). That motion “shall state the new facts that will be

proven at a hearing to be held if the motion is granted, and shall be supported by

affidavits or other evidentiary material.” INA § 240(c)(7)(B), 8 U.S.C.

§ 1229a(c)(7)(B) (emphasis added). An alien seeking to show that evidence is

material bears a heavy burden, and must present evidence demonstrating that, if
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proceedings were reopened, the new evidence would likely change the result.

–57. The moving party bears a heavy burden because

motions to reopen are disfavored, particularly in removal proceedings, where

delays works to the advantage of the deportable noncitizen. 

; see also Gbaya v. U.S. Att’y Gen., 

, 1220 (11th Cir. 2003)

(stating that “in this particular area, the BIA’s discretion is quite broad”). A

change in personal circumstances does not authorize the untimely filing of a

motion to reopen.

       Here, we affirm the BIA’s determination that Madjitov did not prove a

material change in country conditions.5 The changed circumstances exception

applies only “when (1) an alien files a motion to reopen that seeks asylum,

withholding of removal, or relief under the Convention Against Torture; (2) the

motion is predicated on changed country conditions; and (3) the changed

conditions are material and could not have been discovered at the time of the

removal.” 

. We address the supporting documents filed by

Madjitov in turn to explain how they do not compel a reversal.

       1. Madjitov’s Family and Changed Personal Circumstance



       5
         We decline to address Madjitov’s argument that he established a prima facie case for
any form of relief because we can resolve the appeal on an alternative ground upon which the
BIA relied. See Malu v. U.S. Att’y Gen., 

, 1290–91 (11th Cir. 2014); Najjar v.
Ashcroft, 

, 1302 (11th Cir. 2001).
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      A change in personal circumstance alone cannot equate a changed country

circumstance. 

. Madjitov admits as much in his briefing

by arguing that his changed personal circumstances are relevant because of

changed country conditions. Thus, we do not find the documents Madjitov

submitted relating to his family history sufficient to compel the BIA to reopen his

case. Rather, we must determine what the documents submitted regarding the

country of Uzbekistan show.

      2. The 2017 and 2015 Amnesty Reports

      Madjitov argues that the two Amnesty Reports he submitted documented an

increase in persecution and torture of family members of suspected terrorists as

well as an increased ability of the government to carry out its repressive practices

due to an enhanced surveillance program. Upon review, we cannot conclude that

the BIA clearly erred in finding these articles did not show a material change in

country conditions. It is true that the 2015 report stated that “Uzbekistani

authorities routinely target relatives of detainees or prisoners charged with or

convicted of anti-state offences” and families of those suspected of membership in

banned Islamic movements or groups, in order to pressure them to disclose the

suspect’s whereabouts or pressure them to surrender themselves. But a fair reading

of the report indicates that this practice has been going on as early as 1999, when

the president endorsed punishment of relatives of “Islamist fundamentalists” after a
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bombing. In fact, the report contains numerous indications that the torture of

suspected terrorists and their family members is not a changed country condition,

such as:

      (1) describing itself as providing “updates on key cases and human rights

           concerns since 1992,”

      (2) documenting certain torture techniques currently being used which have

           continued “since 1992,”

      (3) containing accounts of unjustified detention and torture of terrorist

           suspects and their family members from 1999, 2007, 2008, and 2011

      (4) attributing the increase of torture on suspected terrorists and their family

           members to the international “war on terrorism” that was started in 2001

      (5) reporting that the torture of terrorism suspects had been ongoing “[o]ver

           the last 15 years” as the government “responded to a number of violent

           events by clamping down on suspected members and sympathizers of

           banned secular and Islamist opposition parties and Islamic movements,”

           and

      (6) stating that “[n]ational security has been at the top of the Uzbekistani

           government’s agenda for the past two decades.”

In short, the report indicates a continuation of the bad acts Madjitov fears rather

than a change in country conditions. The only “change” documented in the report
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is the passage of a new law on prevention of crimes which became effective in

August of 2014 that mandated lists of offenders and individuals believed to be at

risk of committing crimes be kept by local neighborhood committees and security

forces, including “members or suspected members of banned Islamist groups and

Islamic movements and their families.” But keeping a list of suspects is not the

same as implementing a new policy of torture, and so the report does not compel a

finding that the BIA erred.

      As to the 2017 Amnesty report, we have doubts whether it demonstrates a

change in country conditions, since the new surveillance technology it chronicles

were merely tactics which “help[] reinforce the already repressive environment.”

But assuming arguendo that this new technology is a “changed country condition,”

it is not a material change. The article describes the new ability of the Uzbekistani

government to hack a device with malware and access all the device’s content,

intercept communications, track the device’s location, and remotely activate the

device’s microphone and camera. We do not see how this new approach is

material to Madjitov, who claims that he will be targeted because of a public news

release about his brother-in-law rather than any private communications he has

had. Further, the report does not conclusively demonstrate that the Uzbekistani

government has misused this newfound ability, rather that people voluntarily

ceased communications in fear that it would be.
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      3. The 2016 Department of Justice Country Report

      The 2016 country report does not paint Uzbekistan in a favorable light.

According to the report, law enforcement officers routinely use torture, including

threats against family members, to obtain confessions or incriminating information

from detainees. And in 2016, authorities reportedly increased the severity of

punishments for individuals suspected of “Islamist extremism.” Specific credible

cases of torture or mistreatment were documented against six men accused of

participating in banned religious organizations and three human rights activists or

whistleblowers, and there were credible cases of harassment of family members of

five human rights activists. However, nothing in the report indicates that the

arrest, threats, or torture against family members of suspected terrorists is a new

development. Indeed, some of these cases cited in the report began in 1999, 2003,

and 2010. Notably, a 2010 Country Report submitted earlier in the proceedings

also reported that family members of suspected terrorists were targeted for

mistreatment by security forces in Uzbekistan. Thus, the 2016 country report does

not signify the BIA clearly erred in finding no material changed country condition

that would justify reopening a removal proceeding.

   B. We Lack Jurisdiction to Consider Madjitov’s Suspension Clause Argument

      We lack jurisdiction to review the BIA’s decision unless the petitioner has

exhausted all administrative remedies available to him. Indrawati v. U.S. Att’y
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Gen., 

, 1297 (11th Cir. 2015). A petitioner fails to exhaust all

administrative remedies regarding a specific claim when he neglects to raise that

claim before the BIA.

not “stringent.”

the petitioner to have argued previously the “core issue” now on appeal

before the BIA, as well as to have set out any discrete arguments supporting the

claim. 

(quotation marks omitted). The exhaustion

requirement is jurisdictional and precludes review of a claim that was not

presented to the BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 

,

1249–50 (11th Cir. 2006). Where a procedural due process claim properly falls

within the immigration courts’ power to review and provide a remedy, the claim

must be exhausted before we can consider it.

      Madjitov argues that he brought a habeas claim in the U.S. District Court for

the District of Connecticut seeking an injunction to allow him to remain in the

United States in order to apply for a provisional unlawful presence waiver of

inadmissibility, pursuant to 8 C.F.R. § 212.7(e). He argues that his “habeas” claim

must be heard in some forum in order to avoid violating the Suspension Clause,

and that this Court should grant his petition for review and direct the BIA to stay

his removal until he has a chance to complete “the process” for a provisional

unlawful presence waiver of inadmissibility. But we lack jurisdiction to review

whether Madjitov is entitled to a provisional unlawful presence waiver, as he did
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not raise it before the BIA in his motion to reopen. See 

; see also 

. Although Madjitov appears to

challenge the INA’s requirement that he raise his claims for relief before the

agency, a previous panel of this Court ruled that the motion-to-reopen procedure in

immigration proceedings does not violate the Suspension Clause, and its decision

has not been overruled. See 

; 

. Therefore, we are bound by precedent to hold we have no jurisdiction over

this claim and must dismiss this part of Madjitov’s petition.

      PETITION DISMISSED IN PART AND DENIED IN PART.




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