Filed: Feb. 03, 2010
Latest Update: Mar. 02, 2020
Summary: 08-5076-ag Zheliazouski v. Holder BIA A097-305-222 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTA
Summary: 08-5076-ag Zheliazouski v. Holder BIA A097-305-222 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTAT..
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08-5076-ag
Zheliazouski v. Holder
BIA
A097-305-222
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3 rd day of February, two thousand nine.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 BARRINGTON D. PARKER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 ______________________________________
12
13 ALEH ZHELIAZOUSKI,
14 Petitioner,
15 08-5076-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL, *
20 Respondent.
21
22 ______________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Alexander J. Segal, The Law Offices
2 of Grinberg & Segal, New York, New
3 York.
4
5 FOR RESPONDENT: Tony West, Assistant Attorney
6 General; Carl H. McIntyre, Jr.,
7 Assistant Director; Francis W.
8 Fraser, Senior Litigation Counsel,
9 Office of Immigration Litigation,
10 United States Department of Justice,
11 Washington, D.C.
12
13 UPON DUE CONSIDERATION of this petition for review of a
14 Board of Immigration Appeals (“BIA”) decision, it is hereby
15 ORDERED, ADJUDGED, AND DECREED that the petition for review
16 is GRANTED.
17 Petitioner, Aleh Zheliazouski, a native and citizen of
18 Belarus, seeks review of a September 16, 2008 order of the
19 BIA denying his motion to reopen his removal proceedings.
20 In re Aleh Zheliazouski, No. A 097 305 222 (B.I.A. Sept. 16,
21 2008). We assume the parties’ familiarity with the
22 underlying facts and procedural history of the case.
23 We review the BIA’s denial of a motion to reopen for
24 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
25 Cir. 2006). Where the BIA considers relevant evidence of
26 country conditions in evaluating a motion to reopen, we
27 review the BIA’s factual findings under the substantial
28 evidence standard. See Jian Hui Shao v. Mukasey,
546 F.3d
2
1 138, 169 (2d Cir. 2008).
2 Ordinarily, an alien may only file one motion to reopen
3 and must do so within 90 days of the final administrative
4 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
5 There is no dispute that the Petitioner’s second motion to
6 reopen was both untimely and numerically barred. However,
7 there is no time or numerical limitation where the alien
8 establishes materially “changed circumstances arising in the
9 country of nationality.” 8 C.F.R. § 1003.2(c)(3)(ii).
10 The BIA found that the evidence the Petitioner
11 presented at his initial hearing and that he submitted with
12 his motion to reopen both described “assaults directed
13 against Jews in Belarus, . . . incidents of vandalism
14 directed against Jewish cemeteries and property, and actions
15 of Belarusian regime officials indicating a lack of
16 sensitivity toward the Jewish community.” With no further
17 analysis, the BIA concluded that “while the evidence reveals
18 that the number of individual anti-Semitic incidents has
19 recently increased, the evidence does not support the
20 conclusion that conditions in Belarus have materially
21 changed.” Although this Court has rejected the notion that
22 the agency “must expressly parse or refute on the record
3
1 each individual argument or piece of evidence offered by the
2 petitioner,” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d
3 Cir. 2006) (internal quotation marks omitted), the agency
4 “‘h[as] a duty to explicitly consider any country conditions
5 evidence submitted by an applicant that materially bears on
6 his claim . . . [and a] similar, if not greater, duty arises
7 in the context of motions to reopen based on changed country
8 conditions,’” Shou Yung Guo v. Gonzales,
463 F.3d 109, 115
9 (2d Cir. 2006) (quoting Poradisova v. Gonzales,
420 F.3d 70,
10 81 (2d Cir. 2005)); see also Zhi Yun Gao v. Mukasey, 508
11 F.3d 86, 87-88 (2d Cir. 2007).
12 In Poradisova, this Court reversed the BIA’s denial of
13 a motion to reopen based on changed country conditions,
14 describing the BIA’s analysis as “perfunctory (and clearly
15
inaccurate).” 420 F.3d at 81-82. The Court found that the
16 “situation ha[d] worsened [in Belarus] since the
17 [Petitioners’] original application,”
id. at 81, and
18 observed that the country conditions reports submitted with
19 the motion to reopen “devote[d] far more space to reports of
20 anti-Semitic abuses and recounts far more specific incidents
21 than the . . . Reports submitted with the [Petitioner’s]
22 original application. The clear inference is that
23 conditions have been deteriorating,”
id. at 81 n.9.
4
1 As in Poradisova, the reports submitted by Petitioner
2 here depict increased anti-Semitic abuses. Further, it is
3 not clear from the BIA’s “perfunctory” analysis, see id. at
4 82, why it did not believe that the increase in anti-Semitic
5 incidents constituted materially changed country conditions
6 in Belarus. Although the agency may ultimately conclude
7 that the increase in anti-Semitic incidents does not
8 establish that conditions have materially changed, we remand
9 so that the agency may address the issue in detail
10 sufficient to permit meaningful review.
Id. at 77; see also
11 Gonzales v. Thomas,
547 U.S. 183, 186 (2006); Mufied v.
12 Mukasey,
508 F.3d 88, 91-92 (2d Cir. 2007) (discussing the
13 “ordinary remand rule”).
14 For the foregoing reasons, the petition for review is
15 GRANTED, and the case REMANDED for further proceedings
16 consistent with this order. As we have completed our
17 review, the pending motion for a stay of removal in this
18 petition is DISMISSED as moot.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
23
5
