[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                                  OCT 15, 2010
                                No. 10-10588                       JOHN LEY
                            Non-Argument Calendar                    CLERK
                          ________________________

                           Agency No. A079-419-153

VALTER MEMIA,


                                                                          Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.


                          ________________________

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

                               (October 15, 2010)

Before TJOFLAT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Valter Memia, a native and citizen of Albania, has petitioned this court to
review the decision of the Board of Immigration Appeals (“BIA”) denying his

second motion to reopen his removal proceeding for consideration of his

application for asylum, pursuant to 8 C.F.R. § 1003.23(b). The Immigration Judge

(“IJ”) closed Memia’s case in November 2001 after finding that Memia abandoned

his asylum claim by failing to appear for his hearing. Later in 2001, Memia moved

the IJ to reopen the removal proceeding on the ground that he did not receive the

notice of the hearing before the IJ. The IJ denied his motion.

       In 2008, Memia again moved the IJ to reopen the removal proceeding

(“second motion”), reasserting his lack-of-notice argument, and alleging that

country conditions in Albania had deteriorated such that he feared persecution if he

returned. He attached to the motion an application for asylum, withholding of

removal, and withholding of removal under the Convention Against Torture

(CAT). The IJ, in an opinion expressly adopted by the BIA, denied his second

motion as time- and numerically-barred after finding that he did not establish

changed country conditions necessary to excuse these defects. The IJ also found

that he was barred by regulations from reasserting his lack-of-notice argument.

       In his brief before us, Memia raises three arguments.1 First, by denying the

second motion to reopen, the BIA arbitrarily denied his “meritorious application



       1
          We note that where, as here, the BIA adopts the IJ’s opinion as its own opinion, we
review the IJ’s decision as well as the BIA’s. Tang v. U.S. Att’y Gen., 

, 1275
(11th Cir. 2009) (quotation omitted).
                                                2
for CAT relief.” Second, the BIA erred in presuming that he received a notice of

the 2001 hearing. Third, the BIA abused its discretion in denying his second

motion because he demonstrated changed country conditions in Albania.

                                          I.

      We lack jurisdiction “to consider a claim raised in a petition for review

unless the petitioner has exhausted his administrative remedies with respect

thereto.” See Amaya-Artunduaga v. U.S. Atty. Gen., 

, 1250 (11th Cir.

2006); Immigration and Nationality Act (“ INA”) § 242(d)(1), 8 U.S.C.

§ 1252(d)(1). Thus, if an alien fails to raise a challenge in his appeal to the BIA,

we may not consider the challenge in his petition for review. 

. If the alien’s brief to the BIA contains only passing references

to a claim, the BIA may properly consider that issue abandoned before it. Lapaix

v. Att’y Gen., 

, 1145-46 (11th Cir. 2010).

      The record indicates that the scope of Memia’s CAT argument to the BIA

was a passing reference that withholding under CAT was one potential form of

relief to consider in the event the BIA granted the second motion, and the BIA

declined to mention CAT in its decision. By failing to properly preserve this issue

before the BIA, it is unexhausted, and we are without jurisdiction to adjudicate its

merits. Accordingly, we dismiss his petition for review in this respect.




                                           3
                                          II.

      Ordinarily, if an alien fails to appear for a removal hearing, his application

for asylum will be denied. INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A); see

also 8 C.F.R. § 1208.2(c)(3)(ii). The agency may reopen a hearing if the alien’s

unexcused absence and subsequent entry of an in absentia order resulted from a

failure to properly notify the alien of the hearing. INA § 240(b)(5)(B)(ii).

However, “[a]n alien may file only one motion” alleging these grounds. 8 C.F.R.

§ 1003.23(b)(4)(ii). The language of this regulation is plain. See Montano-

Cisneros v. Att’y Gen., 

, 1228 (11th Cir. 2008)

      Memia’s first motion to reopen alleged that he failed to appear because he

did not receive the notice of his 2001 hearing. He was therefore barred from

raising this issue in any subsequent motion to reopen. As such, to the extent

Memia attempted to do so in his second motion contrary to the plain language of 8

C.F.R. § 1003.23(b)(4)(ii), the BIA did not abuse its discretion in denying the

motion.

                                          III.

      We review the the denial of a motion to reopen a removal proceeding for an

abuse of discretion. Zhang v. U.S. Att’y Gen., 

, 1319 (11th Cir.

2009). Judicial review “is limited to determining whether there has been an

exercise of administrative discretion and whether the matter of exercise has been

                                           4
arbitrary or capricious.” 

reopen are especially disfavored in

removal proceedings, “where, as a general matter, every delay works to the

advantage of the deportable alien who wishes merely to remain in the United

States.” Ali v. U.S. Att’y Gen., 

, 808 (11th Cir. 2006) (quotation

omitted).

      Ordinarily, an alien who is subject to a final order of removal and wishes to

reopen the proceedings before the IJ may file one motion to reopen. INA

§ 240(c)(7)(A), 8 U.S.C. § 1229a(c)(7)(A). This motion must be filed within 90

days of the date of the final removal order. INA § 240(c)(7)(C)(i), 8 U.S.C.

§ 1229a(a)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). Nevertheless, the time and

numerical limits are inapplicable if the alien can demonstrate “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.” INA §

240(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i).

      The BIA has the discretion to deny a motion to reopen for, among other

things, failure to introduce evidence that was material and previously unavailable.

Li v. U.S. Att’y Gen., 

, 1374-75 (11th Cir. 2007). “An alien who

attempts to show that the evidence is material bears a heavy burden and must

present evidence that demonstrates that, if the proceedings were opened, the new

                                          5
evidence would likely change the result in the case.” Jiang v. U.S. Att’y Gen., 

, 1256-57 (11th Cir.2009). We favor evidence that is corroborated and

based on personal knowledge. See 

(holding that sworn

affidavits based on personal knowledge that the Chinese government forcefully

sterilized children in an alien’s village, supplemented by government reports, were

sufficient to show changed country conditions).

      A foreign government’s escalated efforts to enforce an existing coercive

policy can support a finding of changed country conditions necessary to grant an

untimely motion to reopen. 

. In Jiang, we granted a

petition to review BIA’s denial of a motion to reopen where the motion was based

on evidence that China more stringently enforced its family planning law since the

original removal hearing. 

that Jiang’s motion focused on Chinese

enforcement efforts as it was likely to affect her, providing evidence of increased

forced sterilization in her province and her hometown in particular. See 

second motion was due to be denied unless he could

show materially changed country conditions. Assuming Memia’s evidence to be

true, it suggested that the Albanian government scaled back its coercive policies

after the IJ denied his motion to reopen in 2001, which lead to improved

conditions. We conclude that the BIA did not abuse its discretion in denying

Memia’s second motion. We therefore deny his petition in this respect.

      PETITION DISMISSED, in part; DENIED, in part.
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