NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0803n.06 Nos. 10-3625, 11-3317 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

A LE X A N D E R A LE X

A N D R O V I T C H ARESTOV, P etitioner ,
v. ERI C H. HOL DER, J R., United States Attorney Gene ral, Respondent.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM A F I

NAL ORDER OF THE B OARD OF I MMI GRATI ON APPEAL S

O P I N I O N

Before: M OORE, WHIT E, and LUCERO, Circuit Judges. * K A R EN N EL SO N M OO R

E, C ir c ui t J ud g e . Pe titioner Alexander Ale xa n d r o v it c h A r e s to v petitions this court for revie w from a final order of the Boa rd of I mmigra

tion Appea ls (“B I A”)

. The BIA di smissed Are stov ’s ap peal of an im migr ation judge ’s (“I J ”) order of remova l, which denied Are stov’s reque sts for asy lum, withholding of remova l unde r the I mmigra tion a nd Nationality Act (“I NA”) , and relief under the Convention Aga i n s t Torture (“CAT” ), all of which wer e based on Are stov’s asser

ted fea r of torture or perse cution in Russia on acc ount of his se vere schizophrenia. Although Are stov’s case is sy mpathetic, beca

use of jurisdictional constraints and Are stov’s inability to show that he is entitled to relief as a matter of law, we must DENY Are stov’s petition for revie w.

The Honora

ble Carlos F. Lucer o, Circuit Judge for the United States Court of Appea ls f or * the Tenth Circuit, sitting by desig nation.Nos. 10-3625, 11-3317

Arestov v . Holder

I. BACKG ROUND Are stov is a Russian citizen and native who was admitted to the United States in J une 2001, when he was twelve y ear s old. After a brief period of absenc e following a voluntary depar ture, he

was rea dmitted as an immigra nt a nd lawful perma

nent resident in Ma

rch 2004. On September 15, 2009, the Depa

rtment of Homeland Security (“D HS”) iss u ed a No t ice to Appea r that char g ed Are stov with remova

bility based on a number of criminal convictions, includin g re ce i v ing and

conce aling stolen proper

ty from a motor vehicle, possession of a controlled substance, resisting and assaulting a police office r, brea king and enter ing a vehicle to steal less than $200 worth of proper ty , and domestic violenc e ag ainst his mother. Although Ar es tov contested remova bility , DHS submitt ed documentation to support eac h of the convictions. The I J thus deter mined that clea

r and convincing evidenc e supported Are stov’s

remova bility under I

NA § 2 37(a) (2)( A)(i) –(ii), 8 U.S.C. § 1227(a) (2)( A)(i) –(ii), which permits

remova l f or crimes involving moral turpitude; I NA § 237(a) (2)( B) (i), 8 U.S.C. § 1227(a) (2)( B) (i), which permits remova l for most convictions relat ed t o controll ed substances; and I NA § 237 (a) (2)( E)( i ), 8 U.S.C. § 1227(a) (2)( E)(i), which permits remova l for convictions involving crimes of domestic violence

. At the remova l hear ing, testimony established that, in 2009, Are stov was diag nosed with

sever e dis org anized-ty

pe schiz ophrenia. Although the officia l diag nosis did not come until a few y ear s afte r Are stov arr ived in the United States, a psy chiatrist at the remova l hear ing testified to his belief that the disease beg an prog ressing in 2004. Are stov’s asy lum application detailed a vivid fea r

2Nos. 10-3625, 11-3317

Arestov v . Holder that, as a result of h i s m en t al i l lness, Are stov would experience “phy sical and mental abuse and torture from people and [t he] Gover nment of Russia,

. . . be homeless and hung ry , and end up either dy ing somewher e on the streets, or taken to a mental hospital wher e [he would] be subjected to drug experiments,

. . . forc ed sterilization,

. . . [or have h i s ] o rga n s . . . taken out and sold for transplantation.” Administrative Record (“A .R.”) at 488 (Asylum App. at 5). But when asked at the hear ing to descr ibe his fea rs, Are stov responde d: “I ’m afr aid of g etting g ood, g etting clothes, g etting

an apar tment and a job, communicating , and g etting any wher e in life, rea lly

. But, at the same time, there is possibili ty

. I might just g et lucky , y ou know? ” A.R. at 211 (Removal Hr’g Tr. at 47). Along these lines, Are stov spe culated that he might have difficulty finding employ ment in Russia, but indicated that he had not looked into apply ing for any jobs up to that point. He expressed some

uncer tainty as to whethe r he w ould be able to locate and se lf-administer his medications. Other evidenc e befor e the I J prese nted a mix ed view of the curr ent situation in Russia with respe ct to mental-he alth p ati ents. Testimony by Are stov’s mother, who at one point worke d in Russia as a fore nsic patholog ist, supported the fea rs stated in the asy lum application. She expressed

conce rn that Are stov would be h o m el ess and there fore picked up for medical experimentation or used for org an transplantation. She also noted that the health-c are sy stem in Russia is g overnme nt controlled and unfair to mental patients. The documentary evidenc e, on the ot her hand, paint ed a picture that was mu ch less bleak. One journal article noted that there are some differ ence s in the trea tment approa ches and medications used for schizophrenia in Russia as compar ed with the United States, but deter

mined that the options in Russia g ener ally wer e equally eff ective. Another article , 3Nos. 10-3625, 11-3317

Arestov v . Holder

while noting incre asing problems with Russia’s mental-he alth sy stem, identified the major problems

as involving defic ient funding , drug shortag es, and corr uption. The article did not mention the ty pes of abuses cited by Are stov’s mother or his asy lum applicatio n , such as drug experimentation or forc ed sterilization. Even the U.N. Human Rights repor t, though rec og nizi ng signi fi cant discrimination issues, repor ts of abuse ag ainst children with disabiliti es, and poor conditions in adult fac iliti es, did not do much to substantiate Are stov’s claim. Turning first to Are stov’s reque st for asy lum, the I J n oted Are stov’s 2004 entry into the United States and conclude d that his 2009 asy lum application was untim e ly

. Fur thermore , acc ording to the I J , the evidenc e was insufficient to establish that the failure to apply for asy lum within one y ear was due to an ex traordina ry ci rc u m s t ance or chang ed country conditions. In considering the exis tence of extraordinary circ umstances, the I J looked only at whether the evidenc e was sufficie nt to establish that the onset of mental illness was ear ly enoug h to have tolled the one-year require ment. After concluding that t h e ev i d en ce was insufficient to support such a conclusion, the I J denied asy lum on tim eliness g rounds. The I J then considere d the merits of Are stov’s reque sts for withholding of remova l under the I NA and protec tion under the CAT. Although the I J deter mined that Are stov had testified cre dibly , she noted that only a small portion of his testimony rela ted to his fea rs of perse cution should he be returne d to Russia. The se inconsistencie s betwee n Are stov’s testimony and the f ear s prese nted in his application cause d his cre dibilit y to suffe r marg inally but wer e not dispositi ve to his claim. The I J thus went on to consider whether Are stov belong ed to a protec ted g roup under the I NA, ultimately

4Nos. 10-3625, 11-3317

Arestov v . Holder reje cting the notion that Arestov belong ed to a pa rticular soc ial g roup consisting of Russians with

sever e mental illness. Noting evidenc e in the rec ord sug g esting that medications for schizophrenia

wer e differ ent, but equally eff ective, the I J also conclude d that Are stov had failed to demonstrate perse cution toward schizophrenia patients in Russia or any probability that he would suffe r phy sical

or m ental torture as a result of his identity . As further support for her conclusion, the I J observe d that Are stov’s fathe r lived with schizophrenia in Russia, and no evidenc e sug g ested that he had been harme d or per secute d in any way . I n an ord er dated April 23, 2010, the BI A dismiss ed Are stov’s appea l. As to the asy lum claim, the BIA noted only that Are stov had not challeng ed the I J ’s timeliness deter mination. I t then proce eded to the merits of Are stov’s claims for withholding of remova l under the I NA and the CAT. 1 Wit h respe ct to those issues, the BIA found “no rea son to disturb the I mmigration J udg e’s decision denying [ Are stov’s] applications fo r re l ief and protec tion.” A.R. at 4 (B I A Order at 2). The BI A ag ree d that “mentally ill Russians” was “too broad and insufficiently cohesive to constitute a particula r social g roup” under the I NA. Id. Fur

thermore , the BI A conclude d that even if it we re a cog nizable g roup, Are stov had not shown any likelihood of perse cution o n ac co u n t o f his mental illness. To the contra

ry , acc ording to the BI A, mat er i al s i n the rec ord supported ref orms in the psy chiatric sy stem that provided for humane patient trea tment, appropr iate treatment options, and

acc ess to equally eff

ective medication. Finally , the BI A deter mined that Are stov “ha[d] not shown

A review of the brief submitt ed to the BI A demonstrate s that althoug h Are stov attempted 1 to rea rg ue the merits of hi s asy lum claim, he did not challeng e the I J ’s deter mination with respect to timeliness. 5Nos. 10-3625, 11-3317

Arestov v . Holder

a likelihood of future torture in Russia on any basis,” thus rende ring him ineligible for relief under the CAT. Id. On May 19, 2010, Are stov filed a petit i o n fo r re v i ew of the BI A’s final order dismiss ing his appea l of the I J ’s remova l order

. Petition for Review, Arestov v. Holder , No. 10-3625 (6th Cir. May

19, 2010). On Dec ember 15, 2010, Are stov filed with the BI A an untimely motion to reope n based on chang ed country conditions. The motion offe red an updated mental-he alth evalua tion and purported to prese nt new evidenc e conce rning perse cution and human-rig hts abuses aga i n st mentally ill patients in Russi a. Although many of the materia ls wer e simil ar to those submitt ed during the

remova l proce eding s—materials that detailed sy stemic shortcoming s but fell short of demonstrating widespre ad intentional abuse—a 2009 article di d provide acc ounts of inhuman and deg rading trea tment that could fea sibly const i t u t e perse cution. That article , which was published prior to Are stov’s remova l hear ing, appea rs to be the only piece of documenta ry evidenc e that direc tly supports his claims. I n an order filed on Marc h 2, 2011, the B I A denied the m otion to reope n. In doing so, the BIA obs erve d that much of the evidence attached to Arestov’s motion, including the 2009 article , “could have been discovere d and prese nted at the prior hear ing, as the repor ts pre- date the hear ing.” Supplemental Administrative Record (“S.A.R.”) at 2 (B I A Orde r at 1). The BI A further deter mined that even if it “conside r[ed] that evidenc e in combination with the other evidenc e submitt ed with the motion, it does not demonstrate that conditions have materia lly chang ed in Russia with reg ard to the trea tment of individuals with mental disorders since [Arestov’s] 2010 hear ing.” Id. Thus, the BI A

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Arestov v . Holder

deter mined that the c h anged- country -conditions exception to the 90-day time limit for moti ons to reope n did not apply

. The BIA further stated that beca use Are stov had alre ady been re m o ved, it would not exercise its discretion to reope n his case sua sponte. On Marc h 29, 2011, Are stov filed

a separ ate petition for revie w of the BI A’s order denying his motion to reope n. Petition for Review, Arestov v. Holder , No. 11-3317 (6th Cir. Mar. 29, 2011). This petition was consolidated wi th Are stov’s ear lier petition in case numbe r 10-3625. II. ANALYSIS A. Jurisdiction W e fi rs t m u s t addre ss the limit ed scope of our jurisdiction over this appea l. As a g ener al matter, our jurisdiction over remova l order s ag ainst criminal aliens is quite narr ow. I n particula r,

we lack “jurisdiction to revie w any final order of remova l ag ainst an alien who is remova ble by

rea son of having committed a criminal offe nse cover ed in section 1182(a) (2) or 1227(a) (2)( A)(iii), (B ), (C), or (D).” 8 U.S.C

. § 1 252(a) (2)( C). Although the statute confe rs limit ed jurisdiction to consider “constitutional claims or questions of law,” id. § 1252(a) (2)( D), we may not consider the I J ’s or the BIA’s fac tual deter minations underly

ing the remova l order , see Graham v. Mukase y , 519 F.3d 546, 549 ( 6th Cir. 2008). Are stov does not challeng e any of the g rounds for remova bility that t h e I J deter

mined by clea r and convincing evidence to exis t. These g rounds included two crimes involving moral 2

Some evidenc e in the administrative rec ord sug g ests that at the time of the remova l hear ing, 2 Are stov was attempting to reope n these convictions and that two had been vacated. At the J anuar y 19, 2010, remova l hear ing, howeve r, Are stov’s attorney indicated that none of the convictions had 7Nos. 10-3625, 11-3317

Arestov v . Holder turpitude under 8 U.S.C. § 1227(a) (2)( A)(i) –(ii), and one conviction for possession of a controlled substance under 8 U.S.C. § 1227(a) (2)( B) (i), all of which trig g er the jurisdictional bar mandated in 8 U.S.C. § 1252(a) (2)( C). Thus, our jurisdiction over this appea l is limit ed to constitutional claims 3 and questions of law

. The issue then become s whether Are stov has asser ted fac tual or leg al challeng es to the BI A’s deter minations in this case . Our case s have identified the division betwee n the two as follows. On the one hand, “whe ther the BIA used the corr ect standard in revie wing the I J ’s decision and whether it assigne d to [ the petitioner] the corr ect bur den of proof” are examples of l eg al questi ons that are subject to revie w. Tran v. Gonzales , 447 F.3d 937, 943 (6th Cir. 2006). The same is true for matters involving the BIA’s construction of a particula r statute. Almuhtaseb v. Gonzales , 453 F.3d 743, 748 (6th Cir. 2006). On the other hand, “whe ther the BI A corr ectly considere d, interpre ted, and weig hed the evidence presented” does not prese nt a question of law or a constit utional issue, and therefor e falls outside the scope of our revie w. Tran , 447 F.3d at 943 (citing Hamid v. Gonzales , 417 F.3d 642 (7th Cir. 2005)). L ikewise, claims that at bottom rely only “on contesting fac tual deter minations ‘rather than on statutory construction or a constitutional claim,” including claims that an I J failed to

been vacated. I t is not clea r from the rec ord whether any furth er action was taken to clea r these convictions and, corr esponding ly , whether such action would hav e i mpacted the g rounds for remova l. The g overnme nt in its brief pointed out Ar estov’s counse l’s conce ssion that none of the convictions had be en vac ated, a n asser tion that Arestov does not cha lleng e. Although Are stov’s domestic-violence conviction rende red him remova ble under 8 U.S.C. 3 § 1227(a) (2)( E)(i), offe nses under that subsection of § 1227 are not inc luded in the list of offe nses that implicate the jurisdictional limitations established in 8 U.S.C. § 1252(a)( 2)(C). 8Nos. 10-3625, 11-3317

Arestov v . Holder emphasize cer

tain fac tors in a petitioner’s case , also are not subje ct to r eview. Ettienne v. Holder , 659 F.3d 513, 518 ( 6th Cir. 2011). B. Withh oldin g of Rem oval Under the INA and Relief Und er t he CAT To be elig ible for withholding of remova l under the I NA, Are stov must demonstrate “a clea r probability , that is, that it i s more likely than not, that [ he] would be subject to per secution” ba sed

on one of five protec ted g rounds: rac e, relig ion, nationality , membership in a particula r social g roup,

or political opinion. Almuhtaseb , 453 F.3d at 749 (interna l quotation marks omitted). Eligibility for relief under the CAT, on the other hand, require s a showing that “it i s more likely than not” that Are stov woul d be subjected to torture if returne d to Russia. Id. at 751 (interna l quotation marks omitted). Although relief under the CAT is possibl e even i f t he I J denies a claim for withholding of remova l und er the I

NA and need not be based on one of the five protec ted g roups, Are stov

never theless must demonstrate a particula rized threa

t of crue l or inhumane trea tment that rises to the level of tortur e. Mapouya v . Gonzales , 487 F.3d 396, 414 ( 6th Cir. 2007). Are stov maintains that (1) th e t es t i m o ny was sufficie nt to establish a likelihood of perse cution on the basis of hi s mental i llness, Pet’r’s Principal Br

. at 25–27; (2) the evidenc e was adequate to support Are stov’s fea r of torture and his application for relief under the CAT, id. at 30–32; and (3) the I J made a “convoluted” and there fore err oneous cre dibilit y deter mination that the BIA failed to addre ss, id. at 27–30. When the BI A revie ws and aff irms the I J ’s decision in a separ ate opinion, we revie w the BIA’s order as the final ag ency action. Khalil i v. Holder , 557 F.3d 429, 435

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Arestov v . Holder (6th Cir. 2009). To the extent that the BI A adopted the I J ’s rea soning, howeve r, we also revie w the I J ’s dec ision. Id. Under normal circ umstances, we revie w an y factual finding s by the I J and the BIA for substantial evidenc e. Id. Acc ording ly , “[t] o reve rse the BI A’s deter mination, we must find that the evidenc e not only supports a contra ry conclusion, but indeed compe ls it.” Almuhtaseb , 453 F.3d at 749 (interna l quotation marks omitted); see also Kaba v. Mukase y , 546 F.3d 741, 747 (6th Cir. 2008) (noting that the substantial-evidenc e standard does not permit reve rsal of the BI A’s or the I J ’s deter mination unless the rec ord, considere d as a whole, compels a contra ry result). But, as we noted above, our revie w is limit ed in this case . I n order to deter mine the scop e o f our revie w, we first “must consider what ty

pe of analy sis would be nece ssary to evalua te the claim on its merits.” Ettienne , 659 F.3d at 517. Only if that analy sis require s resolution of leg al o r co n s t i t utional questions are Are stov’s claims subject to revie w. See id. Are stov’s first argument—whether the evidenc e supports Are stov’s rea sonable fea r of perse cution—is based in larg e part on fac t-based challeng es over which we lack jurisdiction under 8 U.S.C. § 1252(a) (2)( C), (D). To the extent that Are stov challeng es the cre dibilit y deter minations and weig hing of the evidenc e, these arguments prese nt questions of fac t rathe r than the application of a particula

r leg al standard, and thus are not subject to revie w. Johns v. Holder , 678 F.3d 404, 406 (6th Cir. 2012) (noting , in the context of hardship waiver s over which jurisdiction is simil arly limit ed to constitutional claims and questions of law, that “we do not have jurisdiction to revie w the Boa rd’s assessment of the weig ht or cre dibilit y of the e vidence ”).

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The same is g ener ally true of Are stov’s claim that the BI A err ed in deter

mining that he failed to establish a likelihood of torture under th e C AT

. T r a n , 447 F.3d at 943 (noting that revie w of “whe ther the BIA corr ectly considere d, interpre ted, and weig hed the evidenc e prese nted” with respe ct t o a petitioner’s reque st for relief under the CAT is barr ed under § 1252(a) (2)( D) (citing Hamid v. Gonzales , 417 F.3d 642 (7th Cir. 2005))) ; see also Magasouba v. Mukase y , 543 F.3d 13, 16 (1st Cir. 2008) (conc luding that considera tion of “fa ct-ba sed challeng es to the withholding and CAT ruling s,” such as “the BI A’s fac t u al finding s as to cre dibilit y , evidentiar y weig ht, and satisfac tion of a corr ectly fra med burden of proof” are bey ond the court’s limit ed jurisdiction under § 1252(a) (2)( C) (interna l quotation marks omitted)). Despite Are stov’s attempts to frame his CAT 4 claim as involving a leg al issue conce rning the adequa cy of the I J ’s and BI A’s analy sis of the claim, at bottom, he simply challeng es the ag ency ’s weig hing of the evidenc e. Contrary to Are stov’s claim, the BI A’s reje ction of his CAT claim was not based on the I J ’s purported adver se cre dibilit y finding

or on a leg al err or in distinguishing the applicable standards for relief under the I NA as opposed to under the CAT. I nstead, the BIA and the I J both deter mined that th e ev i d ence submitt ed did not support a likelihood of torture

.

Are stov also contends that the BI A err ed in deter mining that sever ely mentally ill Russians 4 do not constitute a particula r social g roup. Although Are stov’ s claim with respe ct to what constitutes a particula

r social g roup prese nts a question of law over which we do have jurisdiction, we do not consider it beca use his claim is fore closed by the I J ’s fac tual deter mination that he did not demonstrate the requisite likelihood of per secution. See ge nerally Mulla v. Holder , 462 F. App’x 592, 594–95 (6th Cir. 2012) (unpublished opinion). 11Nos. 10-3625, 11-3317

Arestov v . Holder Although the above prec edents may not entirely eliminate o u r jurisdiction to consider the ultimate question whether the BIA’s deter mination is based on substantial evidenc e, see Johns , 678 F.3d at 407, to the extent that we do have jurisdiction to revie w Are stov’s claims for relief under the I NA and the CAT, we cannot conclude that the BI A’s decision was in err or. Whil e testimony from Are stov’s mother supported his fea r of future perse cution, th e o t her testimony and documentar y evidenc e does not compel the conclusion that i t i s m o re l i kely than not that Are stov would be perse cuted upon his return. I n some instances, the evidenc e in fac t supports the opposite conclusion. I ndeed, even Are s t o v ’s own testimony did not support his claims for relief

. Given the lack of

e v identiary support for Are stov’s claims, we cannot say that the I J’ s d e te r mi n a ti o n w a s u nr e a s o n a b le

. To establish a well-founde d fea r o f future perse cution, “an applicant cannot rely on specula tive conclusions or mere asser tions of fear of possible perse cution, but instead must offe r rea sonably specific information show i n g a re al threa t of individual perse cution.” Mapouya , 487 F.3d at 412 (interna l quotation marks omitt ed). Speculative claims about drug experimentation or org an harve sting we re e ffe ctively all that Are stov presente d at the mer its hearing

. Are stov’s attempt to ref

rame his challeng e to the I J ’s cre dibilit y d et ermination—which g ener ally qualifies as a finding of fac t, Ramaj v. Go n z ales , 466 F.3d 520, 527 (6th Cir. 2006)—is

s i m i l ar l y unpersua sive. That the BIA did not addre ss the I J ’s cre dibilit y deter mination does n o t alone g ive rise to a revie wable question of law or war rant rem and. I nstead, we have noted that “whe n an I J or the BIA expresses suspicion about an applicant’ s lack of cre dibilit y but the BI A fails t o m ake an expli cit adver se deter mination and instead denies relief on some other basis, we wi l l

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assume that the applicant was cre dible in or der to r eview the actua l g rounds for the ruling .” CruzSamayoa v. Holder , 607 F.3d 1145, 1150 (6th Cir. 2010) (interna l quotation marks omitted). Her e, neither the I J ’s nor the BI

A’s conclusion hinge d on the cre dibilit y deter mination, and, in light of the scant additional evidenc e prese nted to support Are stov’s reque sts for relief , the BI A’s f

a il u r e to ma k e

an expli cit cre dibilit y deter mination did not, as Are stov sug g ests, amount to leg al err or. Even if the BIA had unequivoca lly made a favor able cre dibilit y deter mi nation, Are stov still has not demonstrated that he is entitled to relief. C. Are stov’s Asylum Appli cation Are stov also argues that the I J err ed in denying his asy lum application on timeliness g rounds and that the BIA err ed in concluding that he had not challeng ed the timel i n es s d et ermination on appea l. Wit h respe ct to the merits o f h i s t i m eliness arg ument, Are stov maintains that his asy lum application meets the “extraordinar y circ umstances” exception to the one-y ear filing require ment for asy lum applications on two g rounds: (1) he was a lawful perma nent resident prior to rec eiving the notice to appea

r and filed the asy lum application only a few months after rec eiving the notice, entitling him to considera tion under 8 C.F.R. § 208.4(a) (5)( i v ), and (2) he beg an suffe ring from either a “ser ious illness or mental

. . . disability ” or a “[l] eg al disability ” within a y ear of his arr ival, 8 C.F.R. §208.4(a) (5)( i), (ii). Pet’r’s Principal Br

. at 16–18. The I J reje cted the second g round but did not acknowledg e or a naly ze the first. As a g ener al matter, we lack jurisdiction to revie w a deter mination that an asy

lum application

was untimely unless the challeng e raises a constitutional question or other question of law.

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Almuhtaseb , 453 F.3d at 748. When the I J or BI A makes a leg al err or in evalua ting timeliness, the question become s one of d u e p ro ce s s and there fore falls within our limit ed jurisdiction. Gjyzi v. A s h crof t , 386 F.3d 710, 714 (6th Cir. 2004). To preva il on a due-pr ocess claim, Ar es t o v m u s t demonstrate both err or “such as might have led to a denial of justice” and the exis tence of prejudice

. Hache m v. Holde r , 656 F.3d 430, 435 ( 6th Cir. 2011) (interna l quotation marks omitted). The reg ulations provide that an ex traordina ry circ umstance “may excuse the failure t o file within the 1–y ear period as long as the alien f iled the applica tion within a rea sonable period g iven those circ umstance s . ” 8 C

. F.R. § 208.4(a) (5). One of the listed circ umstances is that “[t] he applicant maintained Tempora ry Protected Status, lawful immigra nt or nonimmigra

nt status, or was g iv en p ar o le, until a rea sonable period befor e the filing of the asy lum application.” Id. § 208.4(a) (5)( iv). I n response to the question conce rning why the application for asy lum was filed

more than one y ear afte r arr iving in the United States, Are stov direc tly ref ere nced the require ments

o f t h is provision, stating: “I am a L awf ul Permane nt Resident who is in I mmigra t i o n C o u rt proce eding s since September 15, 2 0 0 9

. I am filing my asy lum application within a rea sonable period, a t first date de signated by the Immigration J udg e.” A .R. at 516. Be cause Are stov facia lly appea rs to have a strong argument for demonstrating an applicable extraordinary circ umstance, the I J ’s utter fa ilure to consider it likely constitutes the t y pe of prejudicia l err or t hat would, under our prec edents, state a

colora ble due- proce ss claim. Even if, howeve r, we wer e to find that the I J ’s failure to consider Are stov’s immigra tion status sta tes a viable constitutional claim, we never theless lack jurisdiction beca use Are stov f

ailed

14Nos. 10-3625, 11-3317

Arestov v . Holder

to raise the defe cts in the I J ’s decision in his appea l to the BI A. “[B]efore raising an immigr ation issue in fede ral court, a petitioner must normally prese nt all revie wable issues to the BI A.” Khalil i , 557 F.3d at 432–33. This require ment is statutory rathe r than prudential, see 8 U.S.C. § 1252(d)( 1) (per mitti ng revie w of “a final order of remova l only if

. . . the alien has exhausted all administrative

reme dies available to the alien as of rig ht”), and acc ording l y p l ac es a b o na fide limit on our jurisdiction, see Go r v. Ho l d er , 607 F.3d 180, 185 (6th Cir. 2010), cert. denied , 131 S. Ct. 3058 (2011); Ramani v. Ashcroft , 378 F.3d 554, 560–61 (6th Cir. 2004); Hasan v. Ashcroft , 397 F.3d 417, 420 (6th Cir. 2005). Even g ener ously construing Are stov’s filings befor e the BI A, we cannot co n clude that he raised the timeliness issue befor e t h e BI A. Al t h oug h it is true, as Are stov asser ts, that his brief 5 befor e the B I A re peate dly mentions the word “asy

lum,” the discussion involves only the merits of Are stov’s asy lum claim and never once mentions the I J ’s deter minati o n as to the timeliness of Are stov’s asy

lum application. A proper ly raised claim befor e the BI A require s that an issue was not only mentioned but also that it was “re asonably develope d in the p et i t i o ner’ s brief to the BI A.” Khalil i , 557 F.3d at 4 3 3

. Ar est ov’s brief did not meet this standard. Thus, beca use Are stov’s timeliness argument could have been prese nted to the BI A but was not proper ly raised, we are unable The gove rnment contends that the t imeliness issue is moot on acc ount o f t h e fac t that the 5 BIA considere d Are stov’s asy lum claim on the merits. The BI A’s decision, howeve r, does no more than observe that Are stov failed t o ch al leng e the I J ’s timeliness deter mination on appea l befor e moving on to the merits of his reque st for withholding of remova l. The portion of the I J ’s decision that purportedly addre sses the merits of Are stov’s asy lum claim, upon closer rea ding, evalua tes only Arestov’s elig ibilit y for withholding of remova l. See A.R. at 22–24 (I J Dec ision at 16–18). We there fore do not ag ree that Are stov’s timeliness arg ument can be decide d on mootness gr ounds. 15Nos. 10-3625, 11-3317

Arestov v . Holder

to revie w it. See Diallo v. Holder , 364 F. App’x 992, 996 (6th Cir. 2010) (apply ing § 1252(d)( 1) to a constitutional or statutory claim re lating to the timeliness of the petitioner’s a sylum claim). D. Are stov’s Mot ion to Reopen Are stov separ ately cha l l en ges the BI A’s order denying his motion to reope n. I n denying Are stov’s motion, the BIA rea soned that Are stov had failed to establish chang ed country conditions to e x cuse his untimely filing. The BIA also declined to e x erc ise its discr etion to r eopen A restov’s

case sua sponte. Are stov purports to challeng e all aspec ts of the ruling , but focuse s his arg ument on the BIA’s ref

usal to g rant the motion sua sponte and o n the asser tion that the BI A abused its discretion by denying Are stov’s stay o f re m oval beca use that action “stripp[ed the BI A] of jurisdiction” and “pr evente d the B I A from e x erc ising indepe ndent judg ment and discre tion on the Motion to Reopen sua sponte.” Pet’r’s Second Br

. at 31. Are stov also contends that the BI A err ed in f ailing to c onsider his c laim f or equitable tolling ar ising from ineffe ctive assistance of counsel. We addre ss eac h of these a rg uments in turn. I nitially , there is some questio n wh et h er Are stov has waived his challeng e to the BIA’s conclusion that he did not meet the chang ed-c ountry -conditions exception to the filing deadline for

a motion to reope n. Even assuming that Are stov has proper ly raised the argument, howeve r, his convictions for crimes involving moral t u rpitude and for possession of a controlled substance mandate application of 8 U.S.C. § 1252(a) (2)( C) and (D), which ag ain prec ludes our revie w. Pepaj

v. Mukase y , 509 F.3d 725, 728 (6th Cir. 2007). I n Pepaj v. Mukase y , we specific ally addre ssed the application of those provisions to a motion to reope n alleg ing chang ed country conditions

. Id

. 16Nos. 10-3625, 11-3317

Arestov v . Holder

T h e r e , we conclude d that beca use such claims involve a “‘pr edominantly fac tual dete r mi n a ti o n ’ ” a n d hinge on “‘c ontesting [such] fac tual deter minations rathe r than on statutory construction or a constitutional claim,’” we lack jurisdiction to consider them. Id. (quoting Almuhtaseb , 453 F.3d at 748–49). Even if our jurisdiction wer e not circ umscribed in this case , Are stov’s claim would fail. Our normal revie w of this issue is for abuse of discretion, which looks only to “whe ther th e denial of [ t he] motion to reope n . . . was made without a rational explanation, inexpl icably depar ted fr o m established policies, or rested on an impermissible basis such as invidious discrimination ag ainst a particula r rac e or g roup.” Haddad v. Gonzales , 4 3 7 F.3d 515, 517 (6th Cir. 2006) (alter ations in orig inal) (inter

nal quotation marks omitted). Are stov maintains that the BIA err ed by considering chang ed country conditions only as of Are stov’s 2010 hear in g instead of considering the rele vant chang es from the 2007 date at which Are stov’s prior counse l al l egedly cea sed to conduct its pre- remova l-hea ring rese arc h. Are stov, howeve r, cites no authority for the proposition that the BI A could have done so, and the section of the I NA that g rants author ity

to reope n remova l proce eding s based on chang ed country conditions appea rs to fore close it. I n particula r, the I NA require s that the evidenc e of such conditions “is materia l and was not available and would not have been discove red or prese nted at the previous hearing .” 8 U.S.C. § 1229a(c )(7) (C)(ii) (e mphasis added) ; see also 8 C.F.R. 1003.2(c) (3)( ii). As the BIA pointed out, most of the evidenc e prese nted in c oncer t w ith the motion to reope n predated Are stov’s remova l hear ing and there fore does not qualify as “new ” under the statute or regulations.

17Nos. 10-3625, 11-3317

Arestov v . Holder Thus, utiliz ing the 2007 date Are stov sug g ests would encom p ass evidenc e that does not meet the statutory require ments for g ranting a motion to reope n. Cf. Bi Feng Liu v. Holder , 560 F.3d 485, 491 (6th Cir. 2009) (fa

ulting the petitioner for providing numerous materia ls dated befor e the I J issued the remova l order and for failing to “pre sent [a] compar ison of the country conditions from the time betwee n his remova l order in J une 2005 and his motion to reope n in Dec ember 2006”). Acc ording ly , we cannot say t h at t h e BIA abused its discretion in considering the evidenc e as applied to the conditions in Rus sia afte r Are stov’s 2010 hear ing. Wit h respe ct to the BI A’ s ref usal to exercise its sua sponte authority to g rant Are stov’s motion to reope n, Are stov contends that the Supreme Court’s decision in Kucana v. Holder , 130 S. Ct. 827 (2010), controls our result. Kucana held that the limit ations on judicial revie w set forth in 8 U.S.C. § 1252(a) (2)( B) apply only to decisions that are made discr etionary by statute, and not to g rants of discretion to the BIA that are based solely in ag ency regulations. Id. at 831. This fac ially appea rs to be in conf

lict with our prior decisions in Harche nko v. INS , 379 F.3d 405, 410–11 (6th Cir. 2004), and Barry v. Mukase y , 524 F.3d 721, 724 (6th Cir. 2008), both of which conclude d that the BIA’s ref

usal t o ex erc ise its sua sponte authority to reope n remova l hear ings—w hich derive s from a r eg ulatory

provision, 8 C.F.R. § 1003.2(a)—is not subject to judicial re view. I n Gor v. Holder , h o we v er , we deter mined that Kucana mere ly called into doubt the

rea soning in those prior case s rathe r than overr uling them. 6 0 7 F. 3 d at 188. Specifica lly , we conclude d that Kucana cannot fairly be rea d as overr uling [ Harche nko and Barry ], since the Supreme Court specific al l y expressed ‘no opinion on whether fede ral courts may 18Nos. 10-3625, 11-3317

Arestov v . Holder

revie w [BI A ref

usals] to reope n remova l proce eding s sua sponte .’ 130 S. Ct. at 839 n.18. There fore , we are constrained to hold that we lack j urisdict i o n t o revie w t he BIA’s denia l of the petitioner’ s motion t o reope n sua sponte
. Id. (sec ond alteration in orig inal). Althoug h we e x press no opinion on whethe r Gor was c orre ctly decide d, we a

re bound to dismiss Arestov’s cha lleng e for lack of jurisdiction. 6 Are stov’s objection to the BIA’s denia l of his motion t o stay his removal mischar acte rizes the result of that decision. Although we have held that the g overnme nt may not execute a remova l order in order to divest itself or this court of jurisdiction over appea ls or motions to reope n, Pruidze

v. Holder , 632 F.3d 234, 239–40 (6th Cir. 2011) (holding that the BI A could not “improper ly deny [a petitioner’s] motion on the invalid g round that it does not have jurisdiction over motions to reope n filed by aliens abroa d”); Madrigal v. Holder , 572 F.3d 239, 245 (6th Cir. 2009), that is not what the BIA di d here

. I nstead, the BIA con s i d er ed t h e merits of t he mot ion to reope n; conclude d that the motion was untimely ; cons id e r e d w h e th e r A r e s to v h a d p r e s e n te d e v id e n c e of chang ed circ umstances;

As part of his c halleng e to the BI A’s denial of the motion to reope n, Are stov r equests that 6 the court g rant e n banc r eview of a purpor ted conf lict in our case s reg arding judicial revie w of the BIA’s discretion to g rant such motions sua sponte. Are stov maintains t h at t h e i nterpre tation of Kucana in Gor conflicts with the analy sis in our subsequent decision in Dugboe v. Holder , 644 F.3d 462, 469 (6th Cir. 2011). First, we note that our court has declined to g rant an initial hear ing en banc in this case . Arestov v. Holder , No. 11-3317 (6th Cir. Aug

. 22, 2011) (unpublis h ed order ). More importantly , howeve r, we do not believe Gor and Dugboe are irrec oncilable. Unlike Gor , Dugboe involved our jurisdiction over an I J ’s order denying a venue- transfe r motion. 644 F.3d at 469. Apply ing Kucana , we conclude d that we had jurisdiction over the order beca use the I J ’s discretion was g rante d by regulation rather t h an throug h the I NA. Id. For the rea sons discussed above, we deter mined in Gor that, due to pree x isting Six th Circuit prec edent, the same result did not apply to case s involving the BIA’s exercise of its sua sponte authority to g rant a motion to reope n. Gor , 607 F.3d at 188. Be cause only Gor involved the statutory

and re g ulatory

provisions at issue here , that case rathe r than Dugboe g overns our revie w. Are stov is fre e, of course , to se ek rehe aring en banc. 19Nos. 10-3625, 11-3317

Arestov v . Holder

and then declined to e x erc ise its sua sponte authority to reope n Are stov’s appea l. Specifica lly , the BIA asser ted that, under the circ umstances of Are stov’s case , it would “not exercise [i ts] discretion to reope n sua sponte”; the BI A did not state that it lacke d jurisdiction to do so. Id. Be cause the BI A decide d Are stov’s motion to reope n on the merits rathe r than rely ing on improper j u ri sdictional limit ations, Are stov cannot prevail on his argument that the BI A abused it s d i s cr etion by denying his stay of re moval so as to deprive itself of jurisdiction over his motion to reopen. Finally , Are stov contends that the case should be rema nded b ec au s e the BI A failed to consider his claim for equitable tolling based on ineffe ctive assistance of counsel during the remova l proce eding s. Are stov, howeve r, did not actua lly raise this claim in the motion to reope n befor e the BIA. Although Are stov c riticized his former c ounsel’s inexperience in a n attempt to pe rsuade the BIA to exercise its discretion to reope n the remova l proce edin gs sua sponte, Are stov made no attempt to comply with the proce dural require ments for ineffe ctive-a ssistance-of -counse l claims as set forth in Lozada , 19 I

& N Dec . 637 (B I A 1988). “ An alien who f ails to comply

with Lozada ’s require ments forf

eits [hi s] ineffe ctive-a ssistance-of -counse l claim. ” P epaj , 509 F.3d at 727. Be cause the claim was not proper ly raised below, we will not consider it here

. Khalil i , 557 F.3d at 432–33. III. CONCLUSION For the fore g oing r easons, we DENY Are stov’s petition for revie w.

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