NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0242n.06 No. 12-3771 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

VAI D HYZ OTI ; L UL J ETA HYZ OTI ; FJONA HYZ OTI ; and FJODIHYZ OTI , Petitioners,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ) ON PETI TI ON FOR REVI EW OF A FI NAL ORDER OF THE BOARD OF I MMI GRATI ON APPEAL S

BEF ORE: MERRI TT, CL AY, and G RI FF I N, Circuit J udg es. GRI FF I N, Circuit J udg e. Vaid Hy zoti and his wife a

nd two children petition f or re view of the decision of the B oard of I mmigra tion Appeals (“ Boa rd”) denying the ir motion to re open remova l proce eding s. Be cause the B oard’ s decision was not a n abuse of

discretion, we deny

the petition. I

. Petitioners are natives and citizens of Albania. They enter ed the United States in November 2000. A month later, Vaid filed a petition for asy lum that included deriva tive petitions for his wife and children. Vaid claimed past perse cution and a well-founde d fea r of future perse cution on

acc ount of: (1) his political opinion, including his political party aff iliation, and support of theNo. 12-3771

Hyzoti, et al. v. Holde r Albanian monarc hy ; and (2) his work as a journalist. He also soug ht withholding of remova l under the I mmigration and Nationality Act and pr otection under the Convention Ag ainst Torture. The Hy zoti family appea

red befor e an immigra tion judge (“I J ”) in connect i o n wi t h their asy lum petitions . The I J later de nied all re lief, concluding that Vaid was not cre dible and had not adequately corr oborate d his claims. The I J further found that Vaid’s testimony , even if cre dible, did not establish past perse cution, and, alterna tively , that a fundame ntal chang e in circ um stance s had since occur

red in Albania such that the family no longe r had a well-founde d fea r of future perse cution even ha d they established one initially

. Upon revie w, the Boa

rd ag ree d that fundame ntal chang es in Albania prec luded relief

. (I t did not addre ss the I J ’s finding s on cre dibilit y and past perse cution.) The Boa rd pointed specific ally to

a U.S. Depa

rtm en t of State Country Report for 2004, which indicated that, althoug h “ser ious political r epre ssion e x isted in the past, there are no indications of sy stemic political pe rsec ution in Albania at the prese nt time.” I t f urther noted that “ther e are no indications that the Socialist Party , either throug h its own orga nization or t hroug h authorities, i s eng ag ed in a patter n of re pression or violent behavior ag ainst its opponents,” of which Vaid, as a former mem b er of the L eg ality and Democr atic par

ties, was one. T he fa

mily petitioned for revie w, but w e upheld the ag ency ’s ruling as supported by

substantial evidence

. The Hy zoti s declined to leave the country
. Three and a half y ear s later, they asked the Boa rd to reope n their case based upon chang ed circ umstances in Albania. I n support of that reque st, Vaid submitt ed a persona l statement and expert repor ts from university profe ssors Dr. Be rnd Fische r and

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Hyzoti, et al. v. Holde r
Dr. Br ian Wil liams detailing the curr ent political culture and “per vasive problem of sex traff icking ” in A lbania. (Va id claimed his da ug hter fac es an incre ased risk of being kidnaped into pr ostitut ion beca use of her fathe r’s political views.) Var ious news article s and repor ts also wer e submitt ed. The Boa rd denie d their motion. This ti mely petition followed. I I

. The decision whether to reope n remova l proce eding s is a matter of broad Boa rd discretion. See 8 C.F.R. § 1003.2(a) . We reviewa dec ision to deny reope ning f

or an abuse of that discretion, which occur s if the decision lacks “a rational explanation, inexpl icably depar ts from established p olicies, or rests on an impermissible basis such as invidious discrimination.” Y u Y u n Z h a n g v. Holder , 702 F.3d 878, 879 (6th Cir. 2012) (bra ckets and internal quotation marks omitted). We will not reve rse the Boa

rd simply beca

use we would have decide d the matt er d iffer ently in the first instance. See A lizoti v. Gonzales , 477 F.3d 448, 453 ( 6th Cir. 2007). I I I

. An alien subject to a final order of remova l is limit ed to one motion to reope n and must file within ninety day s of being ordere d remove d. 8 U.S.C. § 1229a(c) (7)( A), (C)( i). These limi ts do not apply , howeve r, if the alien seeks asy lum and can show “cha ng ed country conditions” arising in the country

of re moval using evidence that is “mater ial and was not available and would not have been disc overe d or pre sented a t the previous proc eeding .” Id. § 1229a(c )(7) (C)(ii). Petitioners’ motion to reope n was based upon their claim that country conditions in Albania had chang ed for the worse since they wer e order ed remove d (in 2005). The Boa rd g ave two rea sons
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Hyzoti, et al. v. Holde r for deny ing the motion, reasons we consider se para tely

. First, it conclude d that petitioners failed 1 to show that much of the evidenc e submitt ed was unavailable and could not have be en discove red

or prese nted at the hear ings in 2005. That conclusion was rational. Ex tensive portions of Dr. Be rnd Fische r’s repor

t conce rn Albania’ s political and social climate g ener ally —including the preva lence of police corr

uption, c rime, and the lack of an independe nt judiciary —and could have been prese nted in 2005. And his critique of the acc urac y of the U.S. Depa rtment of State’s Co u n t ry C o n ditions Reports as “ofte n paint[i ng ] too posi t i v e o f a p icture of domestic conditions in Albania and overlook[ing] serious problems” w as an a rgument petitioners could have made pr eviously

. L arg e portions of Dr. Br ian Wil liams’s repor t suffe r from the same flaw. The repor t mostly

sum marizes news article s that rec ount stories told by y oung Albanian women abducte d by sex traff icker s and sold into prostitution slave trade s in other countries. But many of the article s either bear no date or

predate 2005. Much of Vaid’s persona l statement is simil arly irrele vant for reope nin g p u r p o s es. He restate s his fea r of returning to Albania, but adds littl e that is new. He not es that his political opponents previously t hreatened to kidnap his daug hter and fea rs they will follow throug h if she returns to Albania. The basis for this fea r st ems in p ar t fr o m his niece ’s abduction in 1996. He declined to mention the kid n ap i n g at his merits hear ing appar ently beca use the immigra

tion judge ref

used to

The Boa rd also noted in passing petitioners’ failure to file with their motion an application 1 for a sy lum, but it is unclea r whether the Boa

rd relied on the fa ilure in deny ing the motion. See B i Feng Liu v. Holder , 560 F.3d 485, 491 (6t h Cir. 2009) (upholding Boa rd’s denial of a motion to reope n in part bec ause the motion did not include an a sy lum application). We assume it did not. - 4 -No. 12-3771

Hyzoti, et al. v. Holde r

excuse Vaid’s daug hter from the courtroom and he did not wish to frig hten her. But Vaid’s quarr el wi t h the judge ’s courtroom proce dure could have been raised during circ uit court revie w o f t h at decision. I t is too l at e t o ra i se i t now, i n a mot ion to reope n. See Y u Y un Zhang , 702 F.3d at 882 (dec lining to take up, on revie w of a reope ning denial, a challeng e to an adver se cre dibilit y finding that could have been r aised in an earlier petition for review)

. The Boar d was withi n its discretion not to reope n proce eding s on the basis of information that was available and co uld have been discovere d and produc ed at the e videntiary hear ings in 2005. Second, the Boa

rd r e c o g n iz e d th a

t not all of petitioners’ submissi on relied upon evidenc e that could have been discovere d and prese nted ear lier; some of it is indeed new. Neve rtheless, the Boa rd found any new evidenc e insufficient to war rant reope ning. I t addre ssed sex traff icking and Albania’ s political climate separ ately

. Reg ar d i n g s ex t raf ficking , it noted that the evidenc e did not show traff icking to be of rec ent onset in A lbania. That conclusion is rea sonable. The submitt ed article s that post-date 2005 (and are there fore “new ”) demonstrate mere ly that sex traff icking in Albania is

a larg e problem and has rec eived more media attention rec ently , not that i t h as signific antly increased s i n ce 2005. Dr. Wil liams states the following : “As stated previously there has been a marke d upsurg e of kidnaping for forc ed prostitution in Albania in rec ent y ear s, espec ia ll y s in c e 2 0 08, and the risk of this to someone who has been targ eted by opponents previously are even highe r.” But

no cross-r efe renc e is supplied, and we cannot find wher e the first proposition is “stated previously ” in the repor

t. Nor is there any evidenc e in t h e repor t, apar t from conclusory statements by Dr.

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Hyzoti, et al. v. Holde r Wil liams, showing that political operatives are incre asin g ly —since 2005—using the prostitution slave tra de to per secute opponents. Reg ardin g Albania’ s political climate, the Boa rd did acknow ledg e that new evidenc e demonstrated an incre ase in “political unrest and instabilit y , corr uption, and criminal violence,” but found it simil arly

inadequa te to war

rant re opening . This conclusion is also rea sonable. The fac t tha t conditions in a movant’s home country have chang ed is insufficient, by itself, to war rant reope ning; the chang es must be “mater ial” to his situation. 8 U.S.C. § 1229a(c )(7) (C)(ii). He must show how the chang es aff ect in some way his elig ibilit y for asy lum. See Moosa v. Holder , 644 F.3d 380, 385 (7th Cir. 2011) (“The Boa rd is require d to evalua te whether the alleg ed chang ed circ umstances are ‘mater ial’ to the applicant’ s reque st for asy lum,” which “in turn invites the Boa rd to deter mine whether these chang es provide the applicant with a well- f o u nded fea r of perse cution.”). Yet a movant need not conclusively establish elig ibilit y for asy lum to secur e reope ning; he need only set out a prima fac ie case of his elig ibilit y , by submitt ing objective evidenc e that shows a “re asonable likelihood” or “realistic chance ” that he can l ater establish elig ibil i t y . Y u Y un Zhang , 702 F.3d at 880; Smith v. Holder , 627 F.3d 427, 437 ( 1st Cir. 2010); accord I n re S-V- , 22 I

. & N. Dec

. 1306, 1308 (B I A 2000); see also INS v. Doherty , 502 U.S. 314, 323 (1992) (a movant’s failure to establish a prima f acie case for r elief is re ason enoug h not to reopen)

. Along thes e l i n es, we have said that a “motion to reope n based on chang ed country conditions ‘ca

nnot rely on specula tive conclusions or mere asser tions of fea

r of possible perse cution, but instead must offe r rea sonably specific information showing a rea l threa t of individual

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Hyzoti, et al. v. Holde r

persec ution .’” Harche nko v. INS , 379 F.3d 405, 410 (6th Cir. 2004) (empha s i s ad d ed ) (quoting Dokic v. IN

S , No

. 9 2 -3 592, 1993 WL 265166, at *5 (6th Cir. J uly 15, 1993) (per curia m)). “The fea red perse cution must rela te to the alien individually , not to the population g ener ally .” Id. (interna l quotation marks omitted). (Asy lum require s a well-founde d fea r of individualized perse cution. See In re Sanchez & Escobar , 19 I

. & N. Dec

. 276, 284 (B I A 1985).) So in Harche nko , for example, we upheld the Boa

rd’s denial of th e p e ti ti oner’ s motion to reope n beca use, despite chang ed human rig hts conditions in Ukra ine, the petitioner “fa il[ ed] to explain how [t he chang es] would aff ect him if” he

wer e returne d there , and thus “fa iled to demonstrate the ‘individualiz ed’ fea r or perse cution require d for asy lum

. ” 3 7 9 F. 3 d at 4 1 0. And in Kiota v. Holder , 389 F. App’x 491 (6th Cir. 2010) (per curiam), we sim ilarly declined to disturb the Board’ s decision where the petitioner failed to show how a post-remova l milit ary coup in Mauritania “pre sented a threa t of future harm to petitioner individually .” Id. at 493. Be cause the new evidenc e Har chenko and Ki o t a s ubmitted failed to materia lly

alter the ir elig ibilit y

for a sy lum, reopening was unwa rra nted. Her e, the Boa

rd acknow le d g ed an incre ase in “political unrest and instabilit y , corr uption, and criminal violence ” in Albania. But it c oncluded that the chang es in conditions did not alter in a ny meaning ful way the family ’s eligibility for as y l u m , fo r they failed to show “how their fea rs di ffe r from those of the populace as a whole.” I t cited Matter of Sanchez & Escobar , 19 I

. & N. Dec

. 276 (B I A 1985), wher e the Boa rd reiterate d its long held view that “g ener ally harsh conditions share d by many others in a country and th e h ar m arising out of civil strife [does] not amount to

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Hyzoti, et al. v. Holde r ‘per secution’” for pur

poses of e stablishing asy

lum eligibility

. Id. at 284. The Boar d acte d within its discretion. Petitioners point to passag es in Dr. Fische r’s repor t that they believe show they will fac e

more dang er than other Albanians if returne d. But the Boa rd could rea sonably find these passag es either insuff

iciently specific or inapposite. For example, Dr. Fischer ref ere nces “a long history

of strained rela tions” betwee n the Movement for National Deve lopment and Albania’ s two major p o l itical parties, and notes that “seve ral prominent [Movement] leade rs wer e arr ested during t h e elec tions of Fe bruar

y 2007.” But no details of the arr ests are provi d ed, so it is unclea r why the leade rs wer e arr ested, and, more importantly , whether it was because of their political opinions. See 8 U.S.C. §§ 1101(a) (42)( A), 1158(b)( 1)(A)

. Nor is there an indication that Vaid is simil arly situated to “prominent [Movement] leade rs.” (Va id was appar ently “a member and activist” of the L eg ality Party , which is “assoc iated” with the larg er Movement. And he admittedly retire d from party politics in 1997.) Dr. Fische r also ref

ere nces Albania’ s “fla

wed elec tions of 2009,” which appar ently sparke d

a political crisis that has had a “prof oundly neg ative” eff

ect on “almost all aspec ts of Albanian life.” But he does not explain how petitioners would be more neg atively aff ecte d than the g ener al Albanian populace

. He also mentions that “[i] n cr ea s ed t en sion has led to incre ased political violence with political activists being threa tened, injured and killed.” But ag ain, we are left in the dark reg arding specific s of these incidents, including why the activists wer e harme d and whether Vaid is simil arly situated. We are further told that the 2011 resig nation of the Deputy Prime Minister under a cloud

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Hyzoti, et al. v. Holde r of scanda l prec ipitated “a massive anti-g overnme nt demonstration—involving as many as 200,000 demonstrators—whic h quickly deg en er at ed into violence leaving four dead, over 150 injured and

score s arr ested.” How Vaid is more likely than the aver ag e Albanian to be aff ecte d by this beca

use of his past membership in the L eg ality party is left unsaid. And the same g oes for the fac t that “loca l elec tions” in May 2011 wer e “ac companied by an incre ased level of political violence with incidents

occur ring near ly ever

y day in the wee ks running up to the actua l vote ”—how are petitioners likely to be spec ifically

aff ecte d by events like this? Dr. F ischer doe s not say
. Conspicuously absent from Dr. Fische r’s repor t i s t h e only sort of evidenc e that would support the Hy

zoti s’ reque st for reope ning—spe cific evidenc e showing that former members of the L eg ality or Movement for National Deve lopment parties, or those who otherwise hold such views,

are subject to a heig htened risk of perse cution on acc ount of their beliefs or former membership in the parties. Absent evidenc e demonstrating that the family has a “r ealistic chanc e” of later establishing a well-founde d fea r of perse cution, the Boa

rd was within its d i s cre tion not to reope n their re moval proce eding s. I V. Petitioners separ ately contend that they wer e denied due proce ss beca use the Boa

rd failed to fully consider the two expert repor ts and the news article s attache d to their motion. But as we have explained befor e, an alien’s rig ht to a “full and fair hear ing” befor e an immigra tion judg e does not extend to purely discretionar y relief such as reope ning. Gasca-R odriguez v. Holder , 322 F. App’x 447, 449 (6th Cir. 2009 ); accord Moosa , 644 F.3d at 385. Moreove r, petitioners are simply

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Hyzoti, et al. v. Holde r mistaken. Although t h e Boa rd’s decision was brief, it did mention both repor ts, and it provided enoug h rea soning to pe rmit meaning ful revie w. That is a ll we require

. See Bi Feng Liu , 560 F.3d at 491 n.5. V. For these re asons, we de ny

the petition for re view.

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