Filed: Dec. 10, 2013
Latest Update: Mar. 02, 2020
Summary: Case: 13-10359 Date Filed: 12/10/2013 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-10359 Non-Argument Calendar _ Agency Case No. A089-345-526 NILAY ESIN, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (December 10, 2013) Before MARTIN, JORDAN and DUBINA, Circuit Judges. PER CURIAM: Nilay Esin, a native and citizen of Turkey, petitions for review of the Board
Summary: Case: 13-10359 Date Filed: 12/10/2013 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-10359 Non-Argument Calendar _ Agency Case No. A089-345-526 NILAY ESIN, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (December 10, 2013) Before MARTIN, JORDAN and DUBINA, Circuit Judges. PER CURIAM: Nilay Esin, a native and citizen of Turkey, petitions for review of the Board o..
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Case: 13-10359 Date Filed: 12/10/2013 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 13-10359
Non-Argument Calendar
_____________________________
Agency Case No. A089-345-526
NILAY ESIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_____________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_____________________________
(December 10, 2013)
Before MARTIN, JORDAN and DUBINA, Circuit Judges.
PER CURIAM:
Nilay Esin, a native and citizen of Turkey, petitions for review of the Board
of Immigration Appeals’ denial of her motion to reopen removal proceedings
based upon newly discovered evidence that she asserts was not available at the
Case: 13-10359 Date Filed: 12/10/2013 Page: 2 of 11
time of her prior hearing. On appeal, Ms. Esin argues that the denial of her motion
to reopen was arbitrary and capricious because the BIA failed to consider the new
evidence she submitted in support of her motion to reopen, particularly failing to
accord “special weight” to the United States Commission on International
Religious Freedom’s 2012 Annual Report (“USCIRF’s 2012 Annual Report”).
After a careful review of the record and the parties’ arguments, we deny Ms. Esin’s
petition.
I
In July of 2006, Ms. Esin traveled to the United States as a nonimmigrant
student authorized to remain in the country for a temporary period. Eleven days
later, she married a 42-year-old United States citizen. On June 18, 2007, Ms. Esin
divorced her husband. Ms. Esin’s ex-husband told the United States Citizenship
and Immigration Services, under oath, that his marriage to Ms. Esin had been
fraudulent and staged to procure immigration status for Ms. Esin. Following the
divorce, Ms. Esin joined a Baptist church in 2008 and was baptized on February
14, 2010.
In May of 2010, Ms. Esin filed an application for asylum, withholding of
removal, and relief under the United Nations Convention Against Torture
(“CAT”), based largely upon her religion. Ms. Esin asserted that her father was an
alcoholic who suffered from major depressive disorder and that while she was
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growing up in Turkey, he had sexually assaulted her and had beaten her and her
siblings. She feared this treatment would continue if she returned to Turkey, in
part because of her conversion to Christianity.
An asylum officer referred Ms. Esin’s application to an Immigration Judge
(“IJ”) after concluding that her application was untimely filed. The Department of
Homeland Security issued Ms. Esin a Notice to Appear, charging that she was
removable pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien
who had remained in the United States longer than permitted. Ms. Esin admitted
the allegations contained in the Notice to Appear and conceded removability.
On June 20, 2011, the IJ conducted a merits hearing. Ms. Esin testified that
she was raised as a Muslim and converted to Christianity, that she started attending
church two or three years before the hearing, that her family is still Muslim, and
that her mother told her that if she returned to Turkey, her father would kill her
because she had converted to Christianity. Additionally, Ms. Esin testified that
when she was 16 years old, her father raped her and that she never told anyone
because her father threatened to kill her. She also explained that she divorced her
husband because he had cheated on her.
With respect to the treatment of religious minorities in Turkey, a 2010 State
Department International Religious Freedom Report that was in evidence before
the IJ provided, in relevant part, that the Turkish government generally respected
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religious freedom in practice, though some Christians did face restrictions and
occasional harassment for proselytizing. The 2010 Religious Freedom Report
further indicated that people who converted from Islam sometimes experienced
societal harassment and violence from relatives and neighbors and that Christians
who engaged in religious advocacy were occasionally threatened or pressured by
government and state officials.
Following the hearing, the IJ issued an oral decision denying Ms. Esin’s
application for asylum, withholding of removal, and CAT relief. Although the IJ
found that Ms. Esin’s application for relief was timely and that her conversion to
Christianity was legitimate, he nevertheless denied the application because he
found Ms. Esin not to be credible due to discrepancies in her testimony regarding
her father and her apparently fraudulent marriage. Further, the IJ found that even
if Ms. Esin was credible, her application would still be denied. First, Ms. Esin had
not shown that she was a member of a particular social group. Second, in light of
the 2010 Religious Freedom Report, Ms. Esin did not have an objectively
reasonable well-founded fear of persecution based on her conversion to
Christianity because the treatment of Christians in Turkey did not amount to
persecution. Ms. Esin appealed the IJ’s denial of asylum and withholding of
removal to the BIA.
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The BIA dismissed Ms. Esin’s appeal, concluding that the IJ’s adverse
credibility determination was not clearly erroneous and agreeing with the IJ’s
finding that Ms. Esin had failed to establish a well-founded fear of persecution
based on her conversion to Christianity. Relying on the 2010 Religious Freedom
Report, the BIA concluded that, while Christians experienced harassment and
discrimination in Turkey, that mistreatment did not rise to the level of persecution.
The BIA further determined that because Ms. Esin had failed to satisfy the lower
burden of proof required for asylum, it followed that she had also failed to satisfy
the higher standard of eligibility for withholding of removal.
On October 9, 2012, Ms. Esin moved the BIA to reopen her removal
proceedings. She asserted that she had new evidence that was unavailable at the
time of her initial hearing, specifically the USCIRF’s 2012 Annual Report, a
January 2012 Report from Turkey’s Association of Protestant Churches, a blog
entry discussing the USCIRF’s 2012 Annual Report, and a news article about the
growing number of threats against Christian clerics in Turkey.
In pertinent part, the USCIRF’s 2012 Annual Report placed Turkey onto a
list of “Countries of Particular Concern” based on the Turkish government’s
systematic and egregious limitations on freedom of religion affecting all religious
communities in Turkey, particularly affecting non-Muslim religious minorities
who face societal discrimination and occasional violence. Additionally, the 2012
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Report from Turkey’s Association of Protestant Churches reflected that in 2011
there were continued reports of hate crimes against Christians in Turkey, but noted
that in many of the cases, either the perpetrator was being prosecuted or the victim
had elected not to press charges.
Ms. Esin argued that her proceedings should be reopened based on this new
evidence of escalating violence against Christians in Turkey. In particular, she
stressed that the USCIRF’s placement of Turkey on its list of “Countries of
Particular Concern” showed that the treatment of Christians rose to the level of
persecution.
The BIA reviewed the new evidence Ms. Esin submitted, and acknowledged
that there was continued harassment and occasional violence against religious
minorities in Turkey, but concluded that the evidence Ms. Esin presented was not
sufficient to make a prima facie showing that she would likely face harm rising to
the level of persecution upon her return to Turkey due to her conversion to
Christianity. Absent such evidence, the BIA found that Ms. Esin had not made a
prima facie showing that she had a well-founded fear of persecution if she were to
return to Turkey. The BIA denied Ms. Esin’s motion to reopen the proceedings
before the IJ because she had not established that, if her proceedings were
reopened, the new evidence would likely change the result of the case. Ms. Esin
now appeals from the BIA’s order denying her motion to reopen.
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II
We review the denial of a motion to reopen for an abuse of discretion. See
Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Our review is
limited to determining whether the BIA exercised its discretion in an arbitrary or
capricious manner. See
id.
A
As the Supreme Court has acknowledged, “[m]otions for reopening of
immigration proceedings are disfavored . . . .” INS v. Doherty,
502 U.S. 314, 323
(1992) (citing INS v. Abudu,
485 U.S. 94, 107-08 (1998)). An alien who moves to
reopen her immigration proceedings based on new evidence of changed country
conditions bears a “heavy burden, and must present evidence of such a nature that
the BIA is satisfied that if proceedings before the IJ were reopened, with all
attendant delays, the new evidence offered would likely change the result in the
case.” Ali v. U.S. Att’y Gen.,
443 F.3d 804, 813 (11th Cir. 2006) (internal
quotation marks, alterations, and citations omitted). A motion to reopen must be
supported by affidavits or other evidentiary material, and it must state new facts
that will be proven at a hearing to be held if the motion is granted. See
Ali, 443
F.3d at 808 (quoting 8 U.S.C. § 1229a(c)(7)).
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We have previously said that, at a minimum, there are at least three
independent grounds upon which the BIA may deny a motion to reopen: (1) failure
to establish a prima facie case; (2) failure to introduce evidence that was material
and previously unavailable; and (3) a determination that, despite the alien’s
statutory eligibility for relief, he or she is not entitled to a favorable exercise of
discretion. See Jiang, 568 F.3d at 1256 (quoting Al Najjar v. Ashcroft,
257 F.3d
1262, 1302 (11th Cir. 2001)).
An applicant for asylum must meet the Immigration and Nationality Act’s
definition of a refugee. See 8 U.S.C. § 1158(b)(1). The INA defines a refugee as a
person who cannot return to his or her home country due to “persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). See
also Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (“To establish
asylum eligibility, the petitioner must, with specific and credible evidence,
demonstrate (1) past persecution on account of a statutorily listed factor, or (2) a
‘well-founded fear’ that the statutorily listed factor will cause future persecution.”).
“This Court has held that persecution is an extreme concept requiring more than a
few isolated incidents of verbal harassment or intimidation[,] mere harassment is
not persecution.” Ruiz v. Gonzales,
479 F.3d 762, 766 (11th Cir. 2007) (citations
and alterations omitted).
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As applicable here, “[t]o establish eligibility for asylum based on a well-
founded fear of future persecution, the applicant must prove (1) a subjectively
genuine and objectively reasonable fear of persecution that is (2) on account of a
protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006)
(citations and internal quotation marks omitted). An applicant who cannot meet
the “well-founded fear standard” for asylum is generally precluded from qualifying
for withholding of removal because she cannot meet the higher standard of
showing that she would “more likely than not” be persecuted. See Rivera v. U.S.
Att’y Gen.,
487 F.3d 815, 820-21 (11th Cir. 2011).
B
We now turn to whether the BIA abused its discretion in denying Ms. Esin’s
motion to reopen her immigration proceedings. Ms. Esin contends that, as with
reports from the Department of State, the BIA should have accorded “special
weight” to the USCIRF’s 2012 Annual Report as highly probative evidence on
changed country conditions in Turkey. Ms. Esin correctly notes that State
Department reports on country conditions are accorded “‘special weight’ because
they are based on the collective expertise and experience of the Department of
State, which ‘has diplomatic and consular representatives throughout the world.’”
Matter of H-L-H- & Z-Y-Z, 25 I. & N. Dec. 209, 213 (B.I.A. 2010), abrogated on
other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012) (quoting
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Aguilar-Ramos v. Holder, 594 F.3d 701, 705 n.6 (9th Cir. 2010), and Xiao Ji Chen
v. U.S. Dep't of Justice,
471 F.3d 315, 341 (2d Cir. 2006)). The BIA here,
however, was not required to give special weight to the USCIRF’s 2012 Annual
Report because, as Ms. Esin acknowledges, it was not a report issued by the State
Department. Nevertheless, the BIA considered the report and explicitly cited to it
when noting the continuing harassment and occasional violence against religious
minorities in Turkey.
The BIA denied Ms. Esin’s motion to reopen after considering the evidence
she had submitted, including the USCIRF’s 2012 Annual Report. Notably, having
adequately explained its decision, the BIA was not required to detail how each
piece of evidence failed to support Ms. Esin’s claim that she had made a prima
facie showing that she would face harm rising to the level of persecution upon her
return to Turkey due to her becoming a Christian. See Seck v. U.S. Att’y Gen., 663
F.3d 1356, 1364 (11th Cir. 2011) (“Where the BIA has given reasoned
consideration to the petition, and made adequate findings, we will not require that
it address specifically each claim the petitioner made or each piece of evidence the
petitioner presented. However, 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.”) (quoting Tan v. U.S. Att’y
Gen.,
446 F.3d 1369, 1374 (11th Cir. 2006)) (internal quotation marks omitted).
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On this record, we cannot say that the BIA’s decision was arbitrary and
capricious. There is nothing in the USCIRF’s 2012 Annual Report or in any of the
other evidence Ms. Esin submitted that indicates that the unfortunate treatment of
religious minorities in Turkey, specifically Christians, rose to the level of
persecution. See Ruiz, 479 F.3d at 766. Thus, the BIA did not abuse its discretion
in denying Ms. Esin’s motion to reopen since Ms. Esin did not make a prima facie
showing that she has a well-founded fear of persecution if she were to return to
Turkey.
III
The BIA did not abuse its discretion in denying Ms. Esin’s motion to
reopen.
PETITION DENIED.
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