Yulia Titova v. U.S. Attorney General , 432 F. App'x 946 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15273 ELEVENTH CIRCUIT
JUNE 30, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A088-399-204
YULIA TITOVA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 30, 2011)
Before CARNES, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Yulia Titova, through counsel, petitions for review of the Board of
Immigration Appeals’ decision denying her motion to reopen her removal
proceedings. The BIA had previously affirmed the Immigration Judge’s order
dismissing Titova’s application for asylum and withholding of removal under the
Immigration and Nationality Act, and relief under the United Nations Convention
Against Torture. See INA §§ 208, 241, 8 U.S.C. §§ 1158, 1231; 8 C.F.R.
§ 208.16(c).
Titova contends that the BIA abused its discretion in denying her motion to
reopen by failing to consider: (1) the country conditions in Russia when it
determined that the evidence submitted with her motion to reopen was previously
available and did not corroborate her claims that she had been kidnapped and
tortured because of her stepfather’s political activities; (2) evidence that she had
been kidnapped and assaulted by Russian officials as a result of her stepfather’s
political affiliations; and (3) the equities weighing in favor of granting her motion
to reopen, such as her compliance with immigration law, her lengthy residence in
the United States, her significant relationships within the United States, and the
abuse she suffered in Russia.1
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Because Titova did not file a petition for review of the BIA’s order affirming the IJ’s
denial of relief, we lack jurisdiction to review Titova’s claim to the extent that she argues that the
IJ and BIA erred in evaluating her initial petition for asylum. See Dakane v. U.S. Att’y Gen., 399
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I.
We review the BIA’s denial of a motion to reopen only for an abuse of
discretion. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). The
BIA abuses its discretion when its decision is arbitrary or capricious. Id. A
motion to reopen may be granted only if the alien presents to the BIA new
evidence that is material and could not have been discovered or presented at the
removal hearing. 8 C.F.R. § 1003.2(c)(1). “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 evidence would likely
change the result in the case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256–57
(11th Cir. 2009). Evidence is “new” if it “was unavailable or could not have been
presented at [the applicant’s initial removal] hearing.” Verano-Velasco v. U.S.
Att’y Gen., 456 F.3d 1372, 1377 (11th Cir. 2006).
The BIA did not abuse its discretion by denying Titova’s motion to reopen
her removal proceedings because none of the evidence she submitted with her
motion corroborated her claim that her stepfather was politically active and that
she was persecuted based on his political associations. Although Titova submitted
evidence that her stepfather was to be extradited to Russia following his arrest on
F.3d 1269, 1272 & n.3 (11th Cir. 2005).
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smuggling charges in Germany and that the Russian government, in general, has
falsely charged political figures with similar crimes, such evidence did not show
that the charges against her stepfather were politically motivated.
The BIA did not err by failing to consider country conditions because it
reasonably concluded that Titova’s additional evidence concerning corruption in
Russia was substantially similar to evidence that she had previously submitted
with her application for asylum. She has failed to explain how this evidence
“would likely change the result in the case.” Jiang, 568 F.3d at 1256–57.
Although Titova submitted medical records indicating that she was treated
at a Russian hospital following a kidnapping and assault, which resulted in a
miscarriage, the BIA did not abuse its discretion in concluding that those medical
records were not previously unavailable. Furthermore, Titova’s medical records
failed to corroborate her claim that she was kidnapped and assaulted by Russian
officials as a result of her stepfather’s political activities.
Titova further argues that the BIA erred in denying her motion to reopen
because it failed to consider the equities that weighed in favor of granting her
motion. Because the BIA concluded that Titova had failed to submit material
evidence that was previously unavailable and was likely to affect the result of her
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application for asylum, the Board was not required to balance the equities to
determine whether she was entitled to discretionary relief.
PETITION DENIED.
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