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Averianova v. Holder

January 28, 2010

OKSANA AVERIANOVA, PETITIONER,
v.
ERIC H. HOLDER, JR.,*FN1 ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review from the Board of Immigration Appeals.

The opinion of the court was delivered by: Gruender, Circuit Judge

Submitted: October 20, 2009

Before RILEY, HANSEN and GRUENDER, Circuit Judges.

Oksana Averianova entered the United States on a temporary visa in January 1996, but she remained here unlawfully after her visa expired. She applied for asylum, and the former Immigration and Naturalization Service ("INS")*fn2 initiated removal proceedings. On November 30, 2004, an Immigration Judge ("IJ") found Averianova removable and denied her application for asylum, withholding of removal, and protection under the Articles of Convention Against Torture ("CAT"). The Board of Immigration Appeals ("BIA") adopted and affirmed the IJ's decision, and we denied her petition for review. See Averianova v. Mukasey, 509 F.3d 890 (8th Cir. 2007). On June 19, 2007, Averianova filed a motion to reopen removal proceedings based on her family situation, which the BIA denied. On April 14, 2008, Averianova filed a motion to reconsider the BIA's denial of her initial motion to reopen and a second motion to reopen removal proceedings, this time based on changed country conditions. The BIA denied these motions on August 25, 2008, and Averianova now petitions for review.

I. BACKGROUND

On November 29, 1995, Averianova, a native and citizen of Uzbekistan, filed an application for a non-immigrant visa to visit the United States. Averianova averred that she intended to visit the United States for one month, that she did not have any relatives in the United States, and that neither she nor anyone on her behalf had ever expressed to a U.S. immigration official an interest in immigrating to the United States. The State Department approved Averianova's application, and she entered the United States in January 1996 with a temporary visa. Averianova remained in the United States unlawfully after her visa expired on July 25, 1996.

In May 1999, nearly three years after her visa expired, Averianova applied for asylum. Contradicting her 1995 visa application, Averianova admitted that her mother had been in the United States since 1991 and that she had listed Averianova as a derivative beneficiary on a 1993 asylum application. Averianova claimed that she fled Uzbekistan to escape persecution on account of her Jewish ethnicity and religion and that she feared returning to Uzbekistan. She described several instances of alleged persecution in Uzbekistan, including being taunted and beaten at school. Averianova also claimed that her family was continually harassed and threatened for being Jewish. She submitted no evidence to corroborate these claims.

On August 25, 1999, an asylum officer interviewed Averianova about her asylum application. The officer found Averianova's testimony "vague, inconsistent, and unbelievable," and the INS referred her asylum application to an IJ and initiated removal proceedings. During her removal proceedings, which commenced on February 4, 2000, Averianova renewed her application for asylum and withholding of removal and sought protection under the CAT. Averianova submitted several documents, including an alleged birth certificate, to establish her Jewish ethnicity. The INS investigated the contents of these documents and determined that they were fraudulent. See Averianova, 509 F.3d at 893-94 (describing the fraudulent documents).

On November 30, 2004, after holding several evidentiary hearings, the IJ denied Averianova's application for asylum, withholding of removal, and protection under the CAT, and ordered her removed to Uzbekistan. The IJ found that Averianova failed to corroborate any of her claims of persecution and harassment and concluded that she was not credible because she had submitted fraudulent documents in an attempt to establish that she was Jewish. The BIA adopted and affirmed the IJ's decision, and we denied Averianova's petition for review. See id. at 895 ("The combination of an adverse credibility finding and a lack of corroborating evidence for the claim of persecution means that the applicant's claim fails, 'regardless of the reason for the alleged persecution.'" (quoting Sivakaran v. Ashcroft, 368 F.3d 1028, 1029 (8th Cir. 2004))).

On June 19, 2007, Averianova filed a motion to reopen removal proceedings. She argued that reopening was warranted because her husband had become a U.S. citizen and had applied for a visa that, if approved, would allow her to apply for adjustment of status.*fn3 Because her motion was untimely, Averianova asked the BIA to exercise its discretion to reopen the case sua sponte. The BIA declined to reopen the case sua sponte and denied Averianova's motion on March 7, 2008.

On April 14, 2008, Averianova filed a motion with the BIA entitled, "Motion for Reconsideration & Motion to Reopen Removal Proceedings Due to Changed Country Conditions." The BIA treated this motion as two separate motions: one seeking reconsideration of its previous denial of Averianova's motion to reopen and another seeking to reopen under 8 C.F.R. § 1003.2(c)(3)(ii) based on changed country conditions.*fn4 On August 25, 2008, the BIA denied both motions on their merits. Averianova petitions for review of the denial of her motion to reconsider and second motion to reopen.

II. DISCUSSION

We first consider whether we have jurisdiction to review the BIA's denial of Averianova's motion to reconsider its denial of her initial motion to reopen. We held in Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) (en banc) (per curiam), that "the decision whether to reopen removal proceedings sua sponte is committed to the BIA's discretion by law . . . [and] we lack jurisdiction to review the agency's discretionary decision," id. at 1001 (internal citation omitted). Thus, because Averianova's initial motion to reopen sought relief under the BIA's discretionary authority to reopen removal proceedings sua sponte, we would not have jurisdiction to review the BIA's denial of that motion. This does not, however, deprive us of jurisdiction to review the denial of Averianova's motion to reconsider. We have held repeatedly that we have jurisdiction to review the denial of a motion to reconsider even when we lack jurisdiction to review the denial of the underlying motion. See, e.g., Al Milaji v. Mukasey, 551 F.3d 768, 773-74 (8th Cir. 2008); Esenwah v. Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004) (holding that "review of the denial of a motion for reconsideration does not mean the court has exercised jurisdiction over the BIA's underlying [order]" because the orders "remain separate and distinct"); De Jimenez v. Ashcroft, 370 F.3d 783, 789 (8th Cir. 2004).*fn5

Although we have jurisdiction to review the BIA's denial of Averianova's motion to reconsider, the Government argues that Averianova waived this claim by failing to discuss it in her opening brief. In her reply brief, Averianova asserts that she challenged the BIA's denial of her motion to reconsider on pages forty to forty-three of her opening brief. These pages contain Averianova's argument that the BIA abused its discretion in denying her second motion to reopen because it failed to analyze her evidence of changed circumstances in Uzbekistan. Averianova's discussion of the motion to reconsider is limited to a conclusory assertion that the BIA's failure to analyze her evidence of changed country conditions also means that the BIA abused its discretion in denying her motion to reconsider. However, Averianova's initial motion to reopen sought relief based on her changed personal circumstances, not changed circumstances in Uzbekistan. Consequently, whether the BIA considered Averianova's evidence of changed country conditions is irrelevant to the denial of her motion to reconsider, which sought review of the BIA's denial of Averianova's initial motion to reopen. Because Averianova provides no meaningful argument in her opening brief to support ...


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