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Gafurova v. Whitaker

Facts

Gafurova entered the U.S. in 2003 as a nonimmigrant visitor and later applied for asylum in 2004. After a series of proceedings, her asylum application was denied, and she was ordered removed to Uzbekistan. Gafurova filed a motion to reopen her case in 2011, which was granted, but subsequent applications for adjustment of status were denied. In 2017, she filed another motion to reopen based on alleged changed conditions in Uzbekistan, which the BIA ultimately denied.

Gafurova is a native of the former Soviet Union and a citizen of Uzbekistan. She entered the United States on June 24, 2003, as a nonimmigrant visitor with authorization to remain for a temporary period, until December 21, 2003. She remained in the United States without authorization and filed an application for Asylum and Withholding of Removal on June 14, 2004.

Issue

Did Gafurova present sufficient new evidence of changed circumstances in Uzbekistan to warrant reopening her removal proceedings, and was the BIA's decision to assign her case to a single member instead of a three-member panel appropriate?

At issue are the Board's determinations (1) that Gafurova did not present new evidence of changed country conditions in Uzbekistan; (2) that Yousif v. Lynch, 796 F.3d 622 (6th Cir. 2015), is not analogous to this case; (3) that because Gafurova did not seek to place under seal an opinion from the United States Court of Appeals for the Second Circuit affirming the denial of her asylum application, she may not use the publication of that opinion as a reason for reopening her removal proceeding; and (4) that Gafurova's present motion to reopen her removal proceeding would be decided by one member, as opposed to a three-member panel, of the Board.

Rule

Under 8 C.F.R. 1003.2(c)(1), a motion to reopen must present new evidence that is material and was not available at the previous hearing. The BIA has discretion in determining whether to assign cases to a single member or a panel.

Under 8 C.F.R. 1003.2(c)(1), a motion to reopen must offer evidence that is 'material and was not available and could not have been discovered or presented at the previous hearing.'

Analysis

The court found that Gafurova did not provide new evidence demonstrating a material change in conditions in Uzbekistan that would support her claim of individualized fear of persecution. The BIA's conclusion that her evidence did not meet the required standard was supported by substantial evidence, and the court upheld the BIA's discretion in deciding the case with a single member.

The Board denied Gafurova's motion to reopen because she failed to present new evidence of changed circumstances in Uzbekistan to establish a prima facie case for any of the relief she sought: asylum, withholding of removal under the Immigration and Nationality Act ('INA'), or withholding of removal under the Convention Against Torture.

Conclusion

The court denied Gafurova's petition for review, affirming the BIA's decision to deny her motion to reopen her removal proceedings.

Because the Board applied the proper legal standards, substantial evidence supports its findings of fact, and the Board adhered to its relevant procedural rules in determining that a single member would decide the motion to reopen the removal proceeding, we DENY the petition for review.

Who won?

The Board of Immigration Appeals prevailed because Gafurova failed to demonstrate the necessary new evidence to support her motion to reopen.

The Board did not abuse its discretion when it determined to decide the alien's motion using a single member particularly because the Board adhered to its regular procedure in this matter.

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