[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-13865

Non-Argument Calendar

________________________

Agency No. A088-150-956

BAKHODIR SABITOVICH MADJITOV, 

 Petitioner,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(September 14, 2020)

Before JILL PRYOR, BRANCH, and LAGOA, Circuit Judges.

PER CURIAM: 

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Bakhodir Madjitov seeks review of an order of the Board of Immigration 

Appeals (“BIA”) denying his motion to reopen removal proceedings as untimely, 

pursuant to Immigration and Nationality Act (“INA”) §240(c)(7)(C)(i), 8 U.S.C. 

§ 1229a(c)(7)(C)(i). The BIA concluded that Madjitov failed to establish any 

exception to the filing deadline because he had not shown that country conditions 

in Uzbekistan materially changed since his merits hearing in 2013. It also 

concluded that he had not shown that he was prima facie eligible for asylum under 

INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 

8 U.S.C. § 1231(b)(3), or withholding of removal under the United Nations 

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or 

Punishment (“CAT”), 8 C.F.R. § 208.16(c). Madjitov argues on appeal that the 

BIA incorrectly decided these questions because the evidence he submitted 

demonstrated both a prima facie case for asylum, withholding of removal, and 

CAT relief, and also that his evidence demonstrates material changed country 

conditions. After review, we affirm of the BIA, and dismiss in part and deny in 

part the petition for review. 

I. Background 

Madjitov, a native and citizen of Uzbekistan, entered the United States in 

March 2006 on a temporary visa. After his visa expired, he filed an application for 

asylum, withholding of removal, and CAT protection on January 3, 2007, alleging 

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that he was persecuted on the basis of political opinion and membership in a 

particular social group. He stated that he had been arrested, detained, and beaten 

by the police in May 2005 for participating in a peace demonstration, and 

threatened and attacked in June 2005 for believing in democracy, and he feared he 

would be arrested and harmed by the police if he was returned to Uzbekistan. 

In January 2007, the Department of Homeland Security (“DHS”) served 

Madjitov with a notice to appear, which charged that he was removable for 

overstaying his visa, pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). 

Madjitov conceded removability as charged, indicated that he wished to apply for 

asylum, withholding of removal, and CAT relief, and submitted a supplement to 

his application for relief. The immigration judge (“IJ”) ultimately denied his 

applications in May 2013 after finding he was not credible and that he failed to 

provide sufficient corroborating evidence.1

 In July and October of 2014, the BIA 

dismissed Madjitov’s appeal and denied his motion for reconsideration. Madjitov 

did not seek judicial review. 

In January 2018, Madjitov, through counsel, filed a motion asking the BIA 

to reopen proceedings sua sponte in order to allow him to adjust his status to that 

of lawful permanent resident based on hardship to his family. Madjitov submitted 

1 The original decision of the IJ was issued in 2011 but was missing a portion of the IJ’s 

reasoning. The IJ reissued a full decision upon remand from the BIA. 

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documents to the agency during his proceedings indicating that he married his 

wife, Madina Mamadjonova, in July 2012; she later became a U.S. citizen in April 

2015; and they resided with their children in Connecticut. Madjitov also submitted 

documents indicating that U.S. Citizenship and Immigration Services (“USCIS”) 

had approved an I-130 petition for alien relative in 2013 filed by Madjitov’s wife 

on his behalf. In October 2016, Madjitov filed an I-485 application to adjust his 

status to that of legal permanent resident. He was detained on December 22, 2017 

and moved to the Etowah County Detention Center in Alabama. 

Soon after, in March 2018, Madjitov retained new counsel and submitted an 

amended motion to reopen based on changed conditions in Uzbekistan, along with 

a motion for a stay of removal. He argued that increased surveillance in 

Uzbekistan and its practice of persecuting family members of suspected terrorists, 

coupled with the public investigation into one of his brothers-in-law’s affiliation 

with an ISIS affiliate, warranted reopening. In support of his amended motion, 

Madjitov submitted a new asylum application based on religion, political opinion,

and membership in a particular social group; a December 2017 Department of 

Justice press release about the arrest of his brother-in-law for lying about 

knowledge of his brother who was a member of a group affiliated with ISIS; 2015 

and 2017 reports by Amnesty International (“Amnesty reports”) documenting use 

of surveillance and torture by the Uzbekistani government; and the U.S. State 

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Department’s 2016 Human Rights Report for Uzbekistan (“Country Report”). The 

Department of Justice press release indicated that, on the same day Madjitov was 

detained by immigration authorities, federal authorities arrested his brother-in-law, 

Sidikjon Mamadjonov, and charged him with unlawful procurement of 

naturalization by lying about his sibling’s connection with an ISIS affiliate. 

In May 2018, the BIA denied Madjitov’s January 2018 motion to reopen for 

family hardships as untimely because he failed to establish any exception to the 

filing deadline and, it concluded, becoming eligible for legal permanent resident 

status was not an extraordinary reason to reopen his filing deadline. The BIA did 

not address Madjitov’s March 2018 amended motion. 

On May 30, 2018, Madjitov, through counsel, again moved the BIA to 

reopen his proceedings based on changed country conditions in Uzbekistan, using 

the same unaddressed claims and evidence from his amended motion to reopen in 

March 2018.

2

 

In September 2019, the BIA denied Madjitov’s May 2018 motion to 

reopen.3

 The BIA concluded that Madjitov had not demonstrated materially 

2 In June 2019, Madjitov also filed a pro se supplement to the motion, arguing that the 

Third Circuit had published relevant intervening precedent and that he feared persecution based 

on his Salafi Muslim faith, which he described as a “strict” form of Islam, and the Uzbekistani 

government incorrectly associated these religious beliefs with terrorism. 

3 As an initial matter, the BIA stated that it would not treat Madjitov’s motion to reopen 

as number-barred, as it was “unclear what happened [to] the March 6, 2018, filing” submitted to 

the BIA as an amendment to his first motion to reopen. 

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changed country conditions or circumstances since the time of his 2013 merits 

hearing. First, it stated, “[t]he background evidence indicates that for the past 15 

years, the Uzbekistan government has been ‘clamping down’ on suspected 

members and sympathizers of Islamic groups, and targeting entire families.” As 

such, it reasoned, Madjitov had not shown changed country conditions since 2013 

“with respect to Uzbekistan government’s treatment of Islamic terrorists or other 

religious extremists.” The BIA concluded that Uzbekistan’s increased online 

surveillance of citizens at home and abroad was not a changed country condition or 

circumstance “material to his claim.” It reasoned, “[g]iven changes in technology 

and surveillance, as well as world-wide concerns with terrorist attacks, such efforts 

at law enforcement are not the type of change contemplated by the statute or 

regulations, as it [sic] does not signify an increase in government-based 

persecution on account of a protected ground.” 

Third, it stated that Madjitov had not shown he was prima facie eligible for 

relief because he had not submitted any evidence that he would be personally 

targeted if returned to Uzbekistan, as he had not submitted any evidence that his 

relatives or his wife’s relatives had been harmed as a result of the activities of his 

wife’s deceased brother. 

Finally, the BIA declined to grant his motion to reopen based on his 

supplemental filing because he did not submit a new asylum application based on 

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the claim, and because his translated evidence was not certified. It also concluded 

that his motion did not demonstrate an exceptional situation that would warrant the 

exercise of its discretion to reopen proceedings under its sua sponte authority.4

 

This petition for review followed. 

II. Standard of Review

We review the BIA’s denial of a motion to reopen removal proceedings for 

abuse of discretion, which is limited to determining whether the BIA exercised its 

discretion in an arbitrary or capricious manner. Zhang v. U.S. Att’y Gen., 572 F.3d 

1316, 1319 (11th Cir. 2009). Where a petitioner challenges the BIA’s 

nondiscretionary grounds for denying a motion to reopen, we remand only if the 

BIA has not given “reasoned consideration” of a question or made “adequate 

findings.” Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 874 (11th Cir. 2018). 

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.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 803 (11th Cir. 2016) 

(quotation marks omitted). The immigration judge’s factual findings are 

considered “conclusive unless a reasonable factfinder would be compelled to 

4 In November 2019, Madjitov filed a 28 U.S.C. § 2241 petition for habeas relief in the 

U.S. District Court for the District of Connecticut, arguing that he had a constitutional due 

process right to complete a “provisional unlawful presence waiver of inadmissibility,” pursuant 

to 8 C.F.R. § 212.7(e), which the district court dismissed for lack of jurisdiction. 

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conclude to the contrary.” Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th 

Cir. 2003). 

We determine our own subject matter jurisdiction de novo. Guzman-Munoz 

v. U.S. Att’y Gen., 733 F.3d 1311, 1313 (11th Cir. 2013). 

III. Discussion

A. Madjitov Did Not Demonstrate a Material Change in Country Conditions

Generally, an alien must file a motion to reopen his removal proceedings

within 90 days of the date of entry of a final administrative order of removal, 

subject to certain exceptions. Zhang, 572 F.3d at 1319; INA § 240(c)(7)(C)(1), 

8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). As relevant here, the INA 

provides for an exception to the time limitation if the motion to reopen is “based on 

changed circumstances arising in the country of nationality or the country to which 

removal has been ordered, if such evidence is material and was not available and 

would not have been discovered or presented at the previous proceeding.” INA 

§ 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii); Jiang v. U.S. Att’y Gen., 568 F.3d 

1252, 1256 (11th Cir. 2009). That motion “shall state the new facts that will be 

proven at a hearing to be held if the motion is granted, and shall be supported by 

affidavits or other evidentiary material.” INA § 240(c)(7)(B), 8 U.S.C. 

§ 1229a(c)(7)(B) (emphasis added). An alien seeking to show that evidence is 

material bears a heavy burden, and must present evidence demonstrating that, if 

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proceedings were reopened, the new evidence would likely change the result. 

Jiang, 568 F.3d at 1256–57. The moving party bears a heavy burden because 

motions to reopen are disfavored, particularly in removal proceedings, where 

delays works to the advantage of the deportable noncitizen. Zhang, 572 F.3d at 

1319; see also Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003) 

(stating that “in this particular area, the BIA’s discretion is quite broad”). A 

change in personal circumstances does not authorize the untimely filing of a 

motion to reopen. Id. at 1258. 

Here, we affirm the BIA’s determination that Madjitov did not prove a

material change in country conditions.5

 The changed circumstances exception 

applies only “when (1) an alien files a motion to reopen that seeks asylum, 

withholding of removal, or relief under the Convention Against Torture; (2) the 

motion is predicated on changed country conditions; and (3) the changed 

conditions are material and could not have been discovered at the time of the 

removal.” Jiang, 568 F.3d at 1256. We address the supporting documents filed by 

Madjitov in turn to explain how they do not compel a reversal. 

1. Madjitov’s Family and Changed Personal Circumstance 

5 We decline to address Madjitov’s argument that he established a prima facie case for 

any form of relief because we can resolve the appeal on an alternative ground upon which the 

BIA relied. See Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1290–91 (11th Cir. 2014); Najjar v. 

Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001).

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A change in personal circumstance alone cannot equate a changed country 

circumstance. Zhang, 572 F.3d at 1319. Madjitov admits as much in his briefing 

by arguing that his changed personal circumstances are relevant because of 

changed country conditions. Thus, we do not find the documents Madjitov

submitted relating to his family history sufficient to compel the BIA to reopen his 

case. Rather, we must determine what the documents submitted regarding the 

country of Uzbekistan show. 

2. The 2017 and 2015 Amnesty Reports 

Madjitov argues that the two Amnesty Reports he submitted documented an 

increase in persecution and torture of family members of suspected terrorists as 

well as an increased ability of the government to carry out its repressive practices 

due to an enhanced surveillance program. Upon review, we cannot conclude that 

the BIA clearly erred in finding these articles did not show a material change in 

country conditions. It is true that the 2015 report stated that “Uzbekistani 

authorities routinely target relatives of detainees or prisoners charged with or 

convicted of anti-state offences” and families of those suspected of membership in 

banned Islamic movements or groups, in order to pressure them to disclose the 

suspect’s whereabouts or pressure them to surrender themselves. But a fair reading 

of the report indicates that this practice has been going on as early as 1999, when 

the president endorsed punishment of relatives of “Islamist fundamentalists” after a 

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bombing. In fact, the report contains numerous indications that the torture of 

suspected terrorists and their family members is not a changed country condition, 

such as:

(1) describing itself as providing “updates on key cases and human rights 

concerns since 1992,” 

(2) documenting certain torture techniques currently being used which have 

continued “since 1992,” 

(3) containing accounts of unjustified detention and torture of terrorist 

suspects and their family members from 1999, 2007, 2008, and 2011 

(4) attributing the increase of torture on suspected terrorists and their family 

members to the international “war on terrorism” that was started in 2001 

(5) reporting that the torture of terrorism suspects had been ongoing “[o]ver 

the last 15 years” as the government “responded to a number of violent 

events by clamping down on suspected members and sympathizers of 

banned secular and Islamist opposition parties and Islamic movements,” 

and

(6) stating that “[n]ational security has been at the top of the Uzbekistani 

government’s agenda for the past two decades.”

In short, the report indicates a continuation of the bad acts Madjitov fears rather 

than a change in country conditions. The only “change” documented in the report 

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is the passage of a new law on prevention of crimes which became effective in 

August of 2014 that mandated lists of offenders and individuals believed to be at 

risk of committing crimes be kept by local neighborhood committees and security 

forces, including “members or suspected members of banned Islamist groups and 

Islamic movements and their families.” But keeping a list of suspects is not the 

same as implementing a new policy of torture, and so the report does not compel a 

finding that the BIA erred. 

As to the 2017 Amnesty report, we have doubts whether it demonstrates a 

change in country conditions, since the new surveillance technology it chronicles 

were merely tactics which “help[] reinforce the already repressive environment.” 

But assuming arguendo that this new technology is a “changed country condition,” 

it is not a material change. The article describes the new ability of the Uzbekistani 

government to hack a device with malware and access all the device’s content, 

intercept communications, track the device’s location, and remotely activate the 

device’s microphone and camera. We do not see how this new approach is 

material to Madjitov, who claims that he will be targeted because of a public news 

release about his brother-in-law rather than any private communications he has 

had. Further, the report does not conclusively demonstrate that the Uzbekistani 

government has misused this newfound ability, rather that people voluntarily 

ceased communications in fear that it would be. 

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3. The 2016 Department of Justice Country Report 

The 2016 country report does not paint Uzbekistan in a favorable light. 

According to the report, law enforcement officers routinely use torture, including 

threats against family members, to obtain confessions or incriminating information

from detainees. And in 2016, authorities reportedly increased the severity of 

punishments for individuals suspected of “Islamist extremism.” Specific credible 

cases of torture or mistreatment were documented against six men accused of 

participating in banned religious organizations and three human rights activists or 

whistleblowers, and there were credible cases of harassment of family members of 

five human rights activists. However, nothing in the report indicates that the 

arrest, threats, or torture against family members of suspected terrorists is a new 

development. Indeed, some of these cases cited in the report began in 1999, 2003, 

and 2010. Notably, a 2010 Country Report submitted earlier in the proceedings 

also reported that family members of suspected terrorists were targeted for 

mistreatment by security forces in Uzbekistan. Thus, the 2016 country report does 

not signify the BIA clearly erred in finding no material changed country condition 

that would justify reopening a removal proceeding. 

B. We Lack Jurisdiction to Consider Madjitov’s Suspension Clause Argument 

We lack jurisdiction to review the BIA’s decision unless the petitioner has 

exhausted all administrative remedies available to him. Indrawati v. U.S. Att’y 

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Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). A petitioner fails to exhaust all 

administrative remedies regarding a specific claim when he neglects to raise that 

claim before the BIA. Id. This requirement is not “stringent.” Id. It merely 

requires the petitioner to have argued previously the “core issue” now on appeal 

before the BIA, as well as to have set out any discrete arguments supporting the 

claim. Jeune, 810 F.3d at 800 (quotation marks omitted). The exhaustion 

requirement is jurisdictional and precludes review of a claim that was not 

presented to the BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 

1249–50 (11th Cir. 2006). Where a procedural due process claim properly falls 

within the immigration courts’ power to review and provide a remedy, the claim 

must be exhausted before we can consider it. Id. at 1251. 

Madjitov argues that he brought a habeas claim in the U.S. District Court for 

the District of Connecticut seeking an injunction to allow him to remain in the 

United States in order to apply for a provisional unlawful presence waiver of 

inadmissibility, pursuant to 8 C.F.R. § 212.7(e). He argues that his “habeas” claim 

must be heard in some forum in order to avoid violating the Suspension Clause, 

and that this Court should grant his petition for review and direct the BIA to stay 

his removal until he has a chance to complete “the process” for a provisional 

unlawful presence waiver of inadmissibility. But we lack jurisdiction to review 

whether Madjitov is entitled to a provisional unlawful presence waiver, as he did 

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not raise it before the BIA in his motion to reopen. See Amaya–Artunduaga, 463 

F.3d at 1251; see also Faddoul, 37 F.3d at 190. Although Madjitov appears to 

challenge the INA’s requirement that he raise his claims for relief before the 

agency, a previous panel of this Court ruled that the motion-to-reopen procedure in 

immigration proceedings does not violate the Suspension Clause, and its decision 

has not been overruled. See Alexandre, 452 F.3d at 1206; Archer, 531 F.3d at 

1352. Therefore, we are bound by precedent to hold we have no jurisdiction over 

this claim and must dismiss this part of Madjitov’s petition. 

PETITION DISMISSED IN PART AND DENIED IN PART.

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