* Pursuant to 5th Cir. R. 47.5, the court has determined t hat this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

April 23, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 03-60674

(Summary Calendar)

_________________

ODILIA SWIRI,

Petitioner,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A76 925 019

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM: *

Odilia Swiri petitions this court to review the decision of the Board of Immigration Appeals

(“BIA”) denying her motion to reopen removal proceedings. Swiri argues that the BIA abused its-2-

discretion in denying her motion to reopen to apply for discretionary relief on the ground that Swiri

previously had an opportuni ty to apply for the relief. She further argues that the BIA abused i ts

d iscret io n in determining that she failed to present prima facie evidence to support her motion to

reopen to a pply for withholding of removal and relief under the Convention Against Torture

(“CAT”).

A motion to reopen for “the purpose of affording the alien an opportuni ty to apply for any

form of discretionary relief” shall not be granted if “it appears that the alien’s right to apply for such

rel ief was fully explained to him or her and an opportunity to apply was therefore afforded at the

former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent

to the hearing.” 8 C.F.R. §1002.3(c)(1). The BIA denied Swiri’s motion to reopen to apply for the

discretionary relief of asylum based upon her fear that her daughter would be sub jected to femal e

genital mutilation (“FGM”) or that she would be persecuted due to her opposition to FGM on her

daughter because she previously had an opportuni ty to apply for such relief. Swiri acknowledges that

she gave birth to h er daughter prior to the immigration judge’s decision on her initial asylum

application, thus the relief she seeks is not on the basis of circumstances that have arisen subsequent

to the hearing. Swiri claims, however, that her right to apply for asylum based upon FGM was not

explained to her. However, Swiri acknowledges that she never disclosed to her attorney the facts

concerning the claim she now seeks to raise. Moreover, Swiri was only entitled to have her right to

apply for asylum explained to her, she was not entitled to have every factual basis for asserting that

right explained to her. Thus, the BIA did not abuse its discretion in denying her motion to reopen

to apply for asylum.

Swiri has also failed to show that the BIA’s denial of her motion to reopen to apply for-3-

withholding of removal was an abuse of discretion. S ee INS v. Abudu , 485 U.S. 94, 106 (1988). A

motion to reopen shall not be granted unless the evidence sought to be offered is material and was

not available and could not have been discovered or presented at the former hearing. 8 C.F.R. §

1003.2(c)(1). Here, the evidence Swiri sought to introduce was kno wn to her during her former

hearing. Accordingly, the BIA did not abuse its discret ion in denying the motion to reopen. S ee

Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 756 n.7 (1986),

rev’d on other grounds (reviewing court may uphold agency decision on unarticulated grounds if

result is clear).

The BIA also denied Swiri ’s mo t io n t o reopen her petition for withholding of removal to

apply for relief under CAT because she did not present prima facie evidence that she was entitled to

such relief. Swiri specifically failed to establish that it would be unreasonable to relocate to an area

of Cameroon in which FGM is not practiced. After reviewing the evidence that Swiri submitted in

support of her claim that relocation would be unreasonable, we conclude that the BIA did not abuse

its discretion in determining that it was not u nreasonable for Swiri to relocate. S ee 8 C.F.R. §

1208.16. The BIA did no t abuse its discretion in denying Swiri’s motion to reopen to apply for

withholding of removal under CAT.

AFFIRMED.