[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-10359

Non-Argument Calendar

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Agency Case No. A089-345-526

NILAY ESIN,

 Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the

Board of Immigration Appeals

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(December 10, 2013)

Before MARTIN, JORDAN and DUBINA, Circuit Judges.

PER CURIAM:

Nilay Esin, a native and citizen of Turkey, petitions for review of the Board 

of Immigration Appeals’ denial of her motion to reopen removal proceedings

based upon newly discovered evidence that she asserts was not available at the 

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time of her prior hearing. On appeal, Ms. Esin argues that the denial of her motion 

to reopen was arbitrary and capricious because the BIA failed to consider the new 

evidence she submitted in support of her motion to reopen, particularly failing to 

accord “special weight” to the United States Commission on International 

Religious Freedom’s 2012 Annual Report (“USCIRF’s 2012 Annual Report”). 

After a careful review of the record and the parties’ arguments, we deny Ms. Esin’s 

petition.

I

In July of 2006, Ms. Esin traveled to the United States as a nonimmigrant 

student authorized to remain in the country for a temporary period. Eleven days 

later, she married a 42-year-old United States citizen. On June 18, 2007, Ms. Esin 

divorced her husband. Ms. Esin’s ex-husband told the United States Citizenship 

and Immigration Services, under oath, that his marriage to Ms. Esin had been 

fraudulent and staged to procure immigration status for Ms. Esin. Following the 

divorce, Ms. Esin joined a Baptist church in 2008 and was baptized on February 

14, 2010. 

In May of 2010, Ms. Esin filed an application for asylum, withholding of 

removal, and relief under the United Nations Convention Against Torture 

(“CAT”), based largely upon her religion. Ms. Esin asserted that her father was an 

alcoholic who suffered from major depressive disorder and that while she was 

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growing up in Turkey, he had sexually assaulted her and had beaten her and her 

siblings. She feared this treatment would continue if she returned to Turkey, in 

part because of her conversion to Christianity.

An asylum officer referred Ms. Esin’s application to an Immigration Judge 

(“IJ”) after concluding that her application was untimely filed. The Department of 

Homeland Security issued Ms. Esin a Notice to Appear, charging that she was 

removable pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien 

who had remained in the United States longer than permitted. Ms. Esin admitted 

the allegations contained in the Notice to Appear and conceded removability.

On June 20, 2011, the IJ conducted a merits hearing. Ms. Esin testified that 

she was raised as a Muslim and converted to Christianity, that she started attending 

church two or three years before the hearing, that her family is still Muslim, and 

that her mother told her that if she returned to Turkey, her father would kill her 

because she had converted to Christianity. Additionally, Ms. Esin testified that 

when she was 16 years old, her father raped her and that she never told anyone 

because her father threatened to kill her. She also explained that she divorced her 

husband because he had cheated on her. 

With respect to the treatment of religious minorities in Turkey, a 2010 State 

Department International Religious Freedom Report that was in evidence before 

the IJ provided, in relevant part, that the Turkish government generally respected 

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religious freedom in practice, though some Christians did face restrictions and 

occasional harassment for proselytizing. The 2010 Religious Freedom Report

further indicated that people who converted from Islam sometimes experienced 

societal harassment and violence from relatives and neighbors and that Christians 

who engaged in religious advocacy were occasionally threatened or pressured by 

government and state officials. 

Following the hearing, the IJ issued an oral decision denying Ms. Esin’s 

application for asylum, withholding of removal, and CAT relief. Although the IJ 

found that Ms. Esin’s application for relief was timely and that her conversion to 

Christianity was legitimate, he nevertheless denied the application because he 

found Ms. Esin not to be credible due to discrepancies in her testimony regarding 

her father and her apparently fraudulent marriage. Further, the IJ found that even 

if Ms. Esin was credible, her application would still be denied. First, Ms. Esin had 

not shown that she was a member of a particular social group. Second, in light of

the 2010 Religious Freedom Report, Ms. Esin did not have an objectively 

reasonable well-founded fear of persecution based on her conversion to 

Christianity because the treatment of Christians in Turkey did not amount to 

persecution. Ms. Esin appealed the IJ’s denial of asylum and withholding of 

removal to the BIA. 

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The BIA dismissed Ms. Esin’s appeal, concluding that the IJ’s adverse 

credibility determination was not clearly erroneous and agreeing with the IJ’s 

finding that Ms. Esin had failed to establish a well-founded fear of persecution 

based on her conversion to Christianity. Relying on the 2010 Religious Freedom 

Report, the BIA concluded that, while Christians experienced harassment and 

discrimination in Turkey, that mistreatment did not rise to the level of persecution. 

The BIA further determined that because Ms. Esin had failed to satisfy the lower 

burden of proof required for asylum, it followed that she had also failed to satisfy 

the higher standard of eligibility for withholding of removal. 

On October 9, 2012, Ms. Esin moved the BIA to reopen her removal 

proceedings. She asserted that she had new evidence that was unavailable at the 

time of her initial hearing, specifically the USCIRF’s 2012 Annual Report, a 

January 2012 Report from Turkey’s Association of Protestant Churches, a blog 

entry discussing the USCIRF’s 2012 Annual Report, and a news article about the 

growing number of threats against Christian clerics in Turkey. 

In pertinent part, the USCIRF’s 2012 Annual Report placed Turkey onto a

list of “Countries of Particular Concern” based on the Turkish government’s 

systematic and egregious limitations on freedom of religion affecting all religious 

communities in Turkey, particularly affecting non-Muslim religious minorities

who face societal discrimination and occasional violence. Additionally, the 2012 

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Report from Turkey’s Association of Protestant Churches reflected that in 2011 

there were continued reports of hate crimes against Christians in Turkey, but noted

that in many of the cases, either the perpetrator was being prosecuted or the victim 

had elected not to press charges. 

Ms. Esin argued that her proceedings should be reopened based on this new 

evidence of escalating violence against Christians in Turkey. In particular, she 

stressed that the USCIRF’s placement of Turkey on its list of “Countries of 

Particular Concern” showed that the treatment of Christians rose to the level of 

persecution. 

The BIA reviewed the new evidence Ms. Esin submitted, and acknowledged 

that there was continued harassment and occasional violence against religious 

minorities in Turkey, but concluded that the evidence Ms. Esin presented was not 

sufficient to make a prima facie showing that she would likely face harm rising to 

the level of persecution upon her return to Turkey due to her conversion to 

Christianity. Absent such evidence, the BIA found that Ms. Esin had not made a 

prima facie showing that she had a well-founded fear of persecution if she were to 

return to Turkey. The BIA denied Ms. Esin’s motion to reopen the proceedings 

before the IJ because she had not established that, if her proceedings were 

reopened, the new evidence would likely change the result of the case. Ms. Esin 

now appeals from the BIA’s order denying her motion to reopen. 

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II

We review the denial of a motion to reopen for an abuse of discretion. See

Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Our review is 

limited to determining whether the BIA exercised its discretion in an arbitrary or 

capricious manner. See id. 

A

As the Supreme Court has acknowledged, “[m]otions for reopening of 

immigration proceedings are disfavored . . . .” INS v. Doherty, 502 U.S. 314, 323 

(1992) (citing INS v. Abudu, 485 U.S. 94, 107-08 (1998)). An alien who moves to 

reopen her immigration proceedings based on new evidence of changed country 

conditions bears a “heavy burden, and must present evidence of such a nature that 

the BIA is satisfied that if proceedings before the IJ were reopened, with all 

attendant delays, the new evidence offered would likely change the result in the 

case.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006) (internal 

quotation marks, alterations, and citations omitted). A motion to reopen must be 

supported by affidavits or other evidentiary material, and it must state new facts 

that will be proven at a hearing to be held if the motion is granted. See Ali, 443 

F.3d at 808 (quoting 8 U.S.C. § 1229a(c)(7)). 

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We have previously said that, at a minimum, there are at least three 

independent grounds upon which the BIA may deny a motion to reopen: (1) failure 

to establish a prima facie case; (2) failure to introduce evidence that was material 

and previously unavailable; and (3) a determination that, despite the alien’s 

statutory eligibility for relief, he or she is not entitled to a favorable exercise of 

discretion. See Jiang, 568 F.3d at 1256 (quoting Al Najjar v. Ashcroft, 257 F.3d 

1262, 1302 (11th Cir. 2001)).

An applicant for asylum must meet the Immigration and Nationality Act’s 

definition of a refugee. See 8 U.S.C. § 1158(b)(1). The INA defines a refugee as a 

person who cannot return to his or her home country due to “persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership 

in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). See 

also Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (“To establish 

asylum eligibility, the petitioner must, with specific and credible evidence, 

demonstrate (1) past persecution on account of a statutorily listed factor, or (2) a 

‘well-founded fear’ that the statutorily listed factor will cause future persecution.”). 

“This Court has held that persecution is an extreme concept requiring more than a

few isolated incidents of verbal harassment or intimidation[,] mere harassment is 

not persecution.” Ruiz v. Gonzales, 479 F.3d 762, 766 (11th Cir. 2007) (citations 

and alterations omitted).

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As applicable here, “[t]o establish eligibility for asylum based on a wellfounded fear of future persecution, the applicant must prove (1) a subjectively 

genuine and objectively reasonable fear of persecution that is (2) on account of a 

protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) 

(citations and internal quotation marks omitted). An applicant who cannot meet 

the “well-founded fear standard” for asylum is generally precluded from qualifying

for withholding of removal because she cannot meet the higher standard of 

showing that she would “more likely than not” be persecuted. See Rivera v. U.S. 

Att’y Gen., 487 F.3d 815, 820-21 (11th Cir. 2011). 

B

We now turn to whether the BIA abused its discretion in denying Ms. Esin’s 

motion to reopen her immigration proceedings. Ms. Esin contends that, as with 

reports from the Department of State, the BIA should have accorded “special 

weight” to the USCIRF’s 2012 Annual Report as highly probative evidence on 

changed country conditions in Turkey. Ms. Esin correctly notes that State 

Department reports on country conditions are accorded “‘special weight’ because 

they are based on the collective expertise and experience of the Department of 

State, which ‘has diplomatic and consular representatives throughout the world.’” 

Matter of H-L-H- & Z-Y-Z, 25 I. & N. Dec. 209, 213 (B.I.A. 2010), abrogated on 

other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012) (quoting 

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Aguilar-Ramos v. Holder, 594 F.3d 701, 705 n.6 (9th Cir. 2010), and Xiao Ji Chen 

v. U.S. Dep't of Justice, 471 F.3d 315, 341 (2d Cir. 2006)). The BIA here, 

however, was not required to give special weight to the USCIRF’s 2012 Annual 

Report because, as Ms. Esin acknowledges, it was not a report issued by the State 

Department. Nevertheless, the BIA considered the report and explicitly cited to it 

when noting the continuing harassment and occasional violence against religious 

minorities in Turkey. 

The BIA denied Ms. Esin’s motion to reopen after considering the evidence 

she had submitted, including the USCIRF’s 2012 Annual Report. Notably, having 

adequately explained its decision, the BIA was not required to detail how each 

piece of evidence failed to support Ms. Esin’s claim that she had made a prima 

facie showing that she would face harm rising to the level of persecution upon her 

return to Turkey due to her becoming a Christian. See Seck v. U.S. Att’y Gen., 663 

F.3d 1356, 1364 (11th Cir. 2011) (“Where the BIA has given reasoned 

consideration to the petition, and made adequate findings, we will not require that 

it address specifically each claim the petitioner made or each piece of evidence the 

petitioner presented. However, 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.”) (quoting Tan v. U.S. Att’y

Gen., 446 F.3d 1369, 1374 (11th Cir. 2006)) (internal quotation marks omitted). 

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On this record, we cannot say that the BIA’s decision was arbitrary and 

capricious. There is nothing in the USCIRF’s 2012 Annual Report or in any of the 

other evidence Ms. Esin submitted that indicates that the unfortunate treatment of 

religious minorities in Turkey, specifically Christians, rose to the level of 

persecution. See Ruiz, 479 F.3d at 766. Thus, the BIA did not abuse its discretion 

in denying Ms. Esin’s motion to reopen since Ms. Esin did not make a prima facie 

showing that she has a well-founded fear of persecution if she were to return to 

Turkey. 

III

The BIA did not abuse its discretion in denying Ms. Esin’s motion to 

reopen.

PETITION DENIED. 

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