Pursuant to Federal Rule of Appellate Procedure * 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. 08 -56 54 -ag A petyonok v. Holder BIA A078 716 256 

### UNITE D STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY S UMMAR Y ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF O R O T H E R P A P E RIN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE A CCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN E L E C T R O N I C DATABASE WHICH IS PUBLICLY ACCESSI BLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 11 day of December, two thousand nine. th 5 6 PRESENT: 7 ROBERT D. SACK, 8 BARRINGTON D. PARKER, 9 REENA RAGGI, 10 Circuit Judges . 11

_________________________________________ 12 13 SVETLANA VYACHESLAVOVNA APETYONOK, 14 Petitioner , 15 16 v. 08-5654-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, * 20 Respondent . 21

_________________________________________2 1 FOR PETITIONER: Alexander J. Segal, The Law Offices 2 of Grinberg & Segal, P.L.L.C., 3 New York, New York. 4 5 FOR RESPONDENT: Tony West, Assistant Attorney 6 General; Stephen J. Flynn, Assistant 7 Director; Jeffrey R. Meyer, 8 Attorney, Office of Immigration 9 Litigation, United States Department 10 of Justice, Washington, D.C. 11 1 2 UPON DUE CONSIDERATION of this petition for review of a 1 3 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 4 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 5 is DENIED. 1 6 Petitioner Svetlana Vyacheslavovna Apetyonok, a native 1 7 and citizen of Belarus, seeks review of the October 27, 2008 1 8 order of the BIA denying her motion to reopen. In re 19 Svetlana Vyacheslavovna Apetyonok , No. A078 716 256 (B.I.A. 2 0 Oct. 27, 2008). We assume the parties’ familiarity with the 2 1 underlying facts and procedural history of the case. 2 2 We review the BIA’s denial of a motion to reopen for 2 3 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d 2 4 Cir. 2006). When the BIA considers relevant evidence of 2 5 country conditions in evaluating a motion to reopen, we 2 6 review the BIA’s factual findings under the substantial 2 7 evidence standard. See Jian Hui Shao v. Mukasey , 546 F.3d3 1 138, 169 (2d Cir. 2008). An alien seeking to reopen 2 proceedings must file her motion to reopen no later than 90 3 days after the date on which the final administrative 4 decision was rendered. See 8 C.F.R. § 1003.2(c)(2). 5 In this case, it is undisputed that Apetyonok’s June 6 2008 motion was untimely inasmuch as the BIA issued a final 7 order of removal in July 2005. See id. However, there is 8 no time limit for filing a motion to reopen if it is “based 9 on changed circumstances arising in the country of 1 0 nationality or in the country to which deportation has been 1 1 ordered, if such evidence is material and was not available 1 2 and could not have been discovered or presented at the 1 3 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The BIA 1 4 reasonably found that Apetyonok’s motion to reopen did not 1 5 qualify for such an exception. 1 6 Contrary to Apetyonok’s argument, the BIA considered 1 7 the country conditions evidence in the record and adequately 1 8 indicated the basis for its determination that conditions 1 9 for political activists had not significantly worsened in 2 0 Belarus. See Wei Guang Wang v. BIA , 437 F.3d 270, 275 (2d 2 1 Cir. 2006)(citing Xiao Ji Chen v. U.S. Dep’t of Justice , 434 2 2 F.3d 144, 160 n.13 (2d Cir. 2006)). Indeed, the BIA4 1 reasonably found that the country conditions evidence in the 2 record indicated that conditions in Belarus remained poor 3 for political activists, but did not demonstrate that 4 conditions had materially worsened since the time of 5 Apetyonok’s hearing before the Immigration Judge. See 8 6 C.F.R. § 1003.2(c)(3)(ii); see also Norani v. Gonzales , 451 7 F.3d 292, 294 & n.3 (2d Cir. 2006). Moreover, Apetyonok’s 8 reliance on Serafimovich v. Ashcroft , 456 F.3d 81 (2d Cir. 9 2006), and Poradisova v. Gonzales , 420 F.3d 70 (2d Cir. 1 0 2005), is misplaced because those cases concern country 1 1 conditions in Belarus during different time periods than the 1 2 one at issue here. Because we find that the BIA did not err 1 3 in finding that Apetyonok did not demonstrate a material 1 4 change in country conditions, we need not reach Apetyonok’s 1 5 argument that the BIA erred in finding that she was not 16 prima facie eligible for relief from removal. See 8 C.F.R. § 1003.2(c)(2),(3). 17 1 8 Finally, we reject Apetyonok’s due process challenge 1 9 because she has no due process right in seeking a 2 0 discretionary grant of a motion to reopen. See Yuen Jin v. 21 Mukasey , 538 F.3d 143, 156-57 (2d Cir. 2008); Gomez-Palacios 22 v. Holder , 560 F.3d 354, 361 n.2 (5th Cir. 2009); Iglesias5 1 v. Mukasey , 540 F.3d 528, 531 (7th Cir. 2008). In any 2 event, Apetyonok received ample process. 3 For the foregoing reasons, the petition for review is 4 DENIED. Having completed our review, we DISMISS the 5 petitioner's pending motion for a stay of removal as moot. 6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8 9 1 0 By:___________________________