UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MEHRDAD NOORI HO SSAIN ABADI, Petitioner,

v. JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent. No. 18-9509 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, McKAYand MATHESON , Circuit Judges.

________________ _________________ Mr. Mehrdad Noori Hossain Abadi ( Mr. Noori), a native and citiz en of Iran, has filed a petition for review o f the Board of Immigration App eals’ (BIA) denial of his motion to reopen his remova l proceedings. Exe rcising juris diction under 8 U.S.C. § 1252(a)(1), see Infanzon v. Ashcroft , 386 F.3d 1359, 1361–62 (10th Cir. 2004), we deny the petition.

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 11, 2018
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND Mr. Noori attempted to enter the United States in 1993 using a fraudulent visa. He was denied entry and placed i n exclusion proceedings. He co nceded excludability but applied for asylum and withhol ding of exclusion and deporta tion, claiming that if he returned to Iran, he would be persecuted because of his poli tical opinion. In 1994, an administrative law judge denie d his application and ordered him excluded, and the BIA denied review. Mr. Noori soug ht review of the agency’s dec ision by filing a petition for habeas corpus in fede ral district court. The district court denied his habeas petition but ordered him t o file a motion to reopen. Mr . Noori filed the motion to reopen in 1997, seeki ng asylum based on political opi nion. The BIA denied the motion in 1998. We la ter affirmed the district court’s denial of his habeas petition. See Abadi v. INS , No. 99-1522, 2000 WL 1158325 (10th Cir. Aug. 16, 2000) (unpublished). Despite the exclusion order, Mr . Noori remained in the United S tates. In 2017, he converted from Islam to Chris tianity and married a woman who also had converted from Islam to Christi anity. He then filed a motion t o reopen to seek asylum, withholding, and relief un der the U.N. Convention Again st Torture. He alleged that the persecution of Christian converts in Iran had significantly worsened since the time of his exclusion hearing in 1994. The BIA decid ed that none of Mr. Noori’s evidence showed that there had been a material chan ge in the persecution of Christian converts in Iran si nce his exclusion proceeding, a nd that the change in3 his own circumstances was not a change in country conditions. The BIA therefore denied the motion. Mr. Noori se eks review of that decision. II. ANALYSIS We review the BIA’s denial of a motion to reopen for an abuse o f discretion. Qiu v. Sessions , 870 F.3d 1200, 1202 (10th Cir . 2017). “The BIA abuses its discretion when its decision prov ides no rational explanation, inexplicably departs from established policies, is de void of any reasoning, or conta ins only summary or conclusory statements.” Id. (internal quotation marks omitted). “[C]ommitting a legal error or making a factua l finding that is not supported b y substantial record evidence is necessarily an abuse of discretion.” Id. (internal quotation marks omitted). “[M]otions to reopen immigration cases are plainly d isfavored, and [a movant] bears a heavy burden to show the BIA abused its discret ion.” Maatougui v. Holder , 738 F.3d 1230, 1239 (10th Cir . 2013) (brackets and internal quotation marks omitted). Generally, a petitioner may only file one motion to reopen, 8 U .S.C. § 1229a(c)(7)(A), and it must be f iled “within 90 days of the d ate of entry of a final administrative order of remova l,” § 1229a(c)(7)(C)(i). The mot ion to reopen at issue here was Mr. Noori’s second, and it was filed some 23 years aft er his final exclusion order. It was therefore both time- and number-barred. But the time bar does not apply to the filing of a motion to reopen in an asylum or withh olding case if the motion is “based on changed count ry conditions arising in the c ountry of nationality or the country to which removal has been ordered, if such evide nce is material and4 was not available and would not have been discovered or present ed at the previous proceeding.” § 1229a(c)(7)(C)(ii). And under 8 C.F.R. § 1003. 2(c)(3)(ii), the same showing of changed country cond itions skirts the number bar. “ [A] significant increase in the level of pers ecution constitutes a material cha nge in country conditions for purposes of . . . § 1229a(c)(7)(C),” and “the BI A abuses its discretion when it fails to assess and c onsider a petitioner’s evidence th at the persecution of others in his protected category has substantially worsened sin ce the initial application.” Qiu , 870 F.3d at 1204–05. To assess w hether there has been a mate rial change in country conditions, the BIA compares the country cond itions “that existed at the time of the merits heari ng below” with “the evidence of country conditions submitted with the motion [to reopen].” Matter of S-Y-G- , 24 I. & N. Dec. 247, 253 (BIA 2007). Mr. Noori argues that the BIA fa iled to consider evidence he submitted that in 2017, soon after his c onversion and marriage, there began a “ne w wave” of persecution of Christian converts in Iran, and that his case fa lls squarely within our decision in Qiu v. Sessions . We reject these arguments. First, the BIA did not fail to consider Mr. Noori’s evidence. The BIA specifically acknowledged his ar gument that conditions had wors ened, and it referenced the evidence he s ubmitted in support. Although its discussion of that evidence was concise, it was not insufficient. Second, Mr. Noori’s case is distinguishable from Qiu . Unlike in Qiu , the BIA did not wholly fail to consider t he evidence that persecution h ad allegedly worsened.5 Further, there was a much gr eater volume of evidence in Qiu , and that evidence was more probative. One human right s organization specifically ide ntified a 300% increase in the level of persecu tion of Chinese Christians duri ng the time period relevant to Qiu’s motion to reope n, 2013 to 2015. 870 F.3d at 1202. Another report similarly detailed a “drastic[]” increase in the persecution of Chinese Christians from 2013 to 2014. Id. Still another report from “an o rganization that tracks the persecution of Christians worldw ide bumped China up its rank of worst-offender lists from 37th in 2014 to 29th in 2015.” Id. And the annual report for 2015 by the U.S. Commission on International Religious Freedom described “u nprecedented violations,” “an alarming increa se in systematic, egregious, an d ongoing abuses,” and the “striking developm ent” of the destruction of more than 400 Christian churches in 2014, “a notable increase over previous years.” Id. at 1202–03 (int ernal quotation marks omitted). Further, and of particular relev ance to Mr. Noori’s argument, i n Qiu , the U.S. Commission noted that “some have characterized the new wave of persecution against Christians tha t swept through China in 2014 as the mostegregious and persistent since the Cultural Revolution.” Id. at 1203 (brackets and internal quotation marks omitted). Mr. Noori notes t hat one piece of his evidence , a Fox News article from March 2017, also uses the t erm “new wave” as part of its t itle: “Iran arrests two Catholics in new wave of brutalit y against Christians.” R., Vo l. 1 at 131. The article describes the arrests of two r ecent converts from Islam to Chri stianity as a “draconian raid” and “part of a brutal cr ackdown on Catholicism” in one Ir anian province. Id.6 The article also reports that Ir an had “ramped up its persecuti on of Christians in 2016,” arresting “at leas t 79 Iranian Christians.” Id. at 132. But using the same descriptive phrase, “new wave,” does not put Mr. Noori’s case s quarely within Qiu

. In Qiu , as discussed, there was a hos t of other, uncontroverted evide nce that the persecution of Christians had si gnificantly increased during th e time period relevant to the reopening inquiry. Similar supporting evidence is l acking here. The only evidence Mr. Noori submitted of what conditions were like when his prior exclusion proceedings ended was an excerpt from a book author ed by Ayatollah Khomeini in 19 84 sanctioning the execution of male apostates—thos e who were born of at least one Moslem parent, “embraced Islam following pubert y[,] and then left Islam.” Id. at 121–22. Lacking any other new evidence regardin g earlier conditions, the BIA sua sponte reviewed the administrative record associated with Mr. Noori’s prior proceed ings, including his 1997 motion to reopen. That evid ence shows that between 1994 a nd 1996, a number of Christian churches were clos ed, and converts from Islam to C hristianity were arrested, harassed, oppressed, dis criminated against, verbally or physically abused or tortured, or, in seve ral cases involving Ch ristian leaders, ass assinated or executed. See id. at 256, 260, 271, 293, 312 , 313, 317, 344–46, 369; id. , Vol. 2 at 404, 409, 410, 430. There is some discussi on of several specific instanc es involving imprisonment, torture, and execu tion, and a few indications of the scale on which these things occurred: “[I]n 199 4, . . . the government mounte d a fierce campaign against the small Christian mi nority,” “scores of young Christi ans — many of them7 converts from Islam — have been i mprisoned and tortured,” and t here was an “increased harassment of Christians in Iran.” Id. , Vol. 1 at 345. In 1996, the “[o]ppression of evangelical Christians increased.” Id. at 256. Neither Fox News’s “new wave” ar ticle nor any of Mr. Noori’s ot her evidence of current conditions permits a d etermination that the persecut ion of Christian converts in Iran has significantly increased or substantially w orsened since the time of Mr. Noori’s exclusion proceed ings. A July 201 7 press releas e from the Center for Human Rights in Iran characterized as a “[s]entencing [s]pree” the fact that one judge in Tehran gave 10- or 15-year p rison sentences to 11 Christian converts, allegedly on “trumped up charges” or in “a tr ial completely lacking due proc ess.” Id. at 124–125. Also in July 2017, a Farsi Chris tian News Network article, appa rently discussing the same 11 convictions (four of wh ich were for promoting “house ch urches” and “Zionist Christianity”) and one o ther conviction, opined that “ prison gates are opening wider for persecuted Chri stians in Iran with 12 more re ceiving prison sentences last month.” Id. at 128 (internal quotation ma rks omitted). The article quoted a human rights group repr esentative as saying “the Irani an government is fearful of the growth of Christi anity inside Iran,” and a repre sentative of a Christian group as saying the convictions w ere “on spurious charges” and “clearly part of an intensified campaign of judicial h arassment aimed at intimidati ng members of minority faiths.” Id. at 128 (internal quotation mark s omitted). A late 2016 articl e from thedailybeast.com discusse s two other individual cases of convert incarceration and indicates there a re about 90 Christians imprisoned in Iran, ostensibly because of8 their religious beliefs, and thatmany converts practice at hou se churches. Id. at 137– 38. These reports do not show a s ignificant increase in the op pression of Christian converts from the “fierce campai gn” and “scores” of imprisoned and tortured Christians mentioned in the evi dence from Mr. Noori’s prior pro ceedings. A March 2017 World News Group ar ticle titled “Christian sites d estroyed in Iran” cites an Iranian news orga nization, Mohabat News, as repo rting vandalism at a Christian cemetery in 2012, “mo re recent property damage at an Armenian church,” “the destruction of [at] least two churches,” and that “[m]any of the roughly 500 registered church buildings are abandoned or on the verge of de struction.” Id. at 140 (internal quotation ma rks omitted). This re port of property da mage is not meaningfully different than the closing of several churches ref erred to in the record evidence from Mr. Noori’s prior proceedings, and the only expla nation of why the 500 registered church buildings h ave been abandoned or teeter o n the brink of destruction is that the Iranian government has allowed “histori c Christian sites to fall into disrepair.” Id. The World News Group article als o states that an appeals court had recently upheld the Iranian government’s confiscation of a Christian pro perty called Sharon Gardens, but then quotes a spokesm an from the International Campaign for Human Rights in Iran as saying that “Ch ristians out of fear kept quie t about a lot of church property confiscati ons in the past,” id. (internal quotation ma rks omitted), which implies that the confiscation of S haron Gardens was another ins tance of a long-standing issue, not a manif estation of a worsened situatio n . The article closes9 by acknowledging the existence of underground Christian evangel ical churches and noting that an organization calle d “Open Doors ranked Iran eigh th on its most recent World Watch list of nations tha t persecute Christians, up one s pot from last year.” Id. at 141. But the fact that Iran ranks eighth on one list of na tions that persecute Christians is, standi ng by itself, not germa ne to whether condi tions have substantially worsened. Mr. Noori’s final pieces of evide nce are the U.S. Department of State’s Iran 2016 Human Rights Practices and th e State Department’s 2016 tra vel warning for Iran, but like the news article s Mr. Noori submitted, they do n ot show the requisite change in country conditions. Mr . Noori admits he provided the State Department report only for its statement th at there are “‘harsh and life-t hreatening conditions in [Iran’s] detention facilities.’” Pet’r’s Opening Br. at 19 (qu oting R., Vol. 1 at 143). But nothing in the report or any o f the other record evidence i ndicates that such conditions did not exist at the ti me of Mr. Noori’s prior proce edings. And only two other parts of the State Departm ent report bear on religious pe rsecution. The first is the undisputed fact that Iranian “ law provides the death penalt y in cases of . . . apostasy.” R., Vol. 1 at 144. T he second is that “[t]he human rights NGO United for Iran estimates there are 905 pris oners of conscience in Iran, i ncluding those jailed for their religious beliefs.” Id. at 154. This statement, how ever, is too vague with respect to the relevant inquiry —the number of Christian convert s imprisoned because of their apostasy—to be of any he lp in determining whether the persecution of Christian converts in Iran in 201 7 was substantially worse than it was during10 Mr. Noori’s prior proceedings. 1 The travel warning simply says that “[t ]he Iranian government continues to repress some minority religious and eth nic groups, including Christians.” Id. at 192. We do agree with Mr. Noori thatthe BIA misunderstood the signi ficance of an observation in the Human Rights Practices report that the Irani an government “reserves five seats i n parliament for members of recognized mi nority religious groups,” and that three of those seats were filled by Christian s. Id. at 171. Iran recognizes Christianity, id. at 256, but it does not recognize apostates, so the fact that the three seats were filled by Ch ristians does not mean those C hristians were converts from Islam and thus perhaps i ndicating that conditions have notsubstantially worsened. But because the BIA acknowledged Iran’s rejection of apostates earlier in its decision, and none of the othe r record evidence suffices to meet Mr. Noori’s heavy burden to obtain reopening , the BIA’s partial reliance on the presence of three Christians in parliament was at most harml ess error. III. CONCLUSION We conclude that the BI A did not abuse its d iscretion in determ ining that, on this record, the treatment of Ch ristian converts in Iran in 201 7 was not substantially

1 The section of the 2016 Human Rights Practices report titled “ Freedom of Religion” contains no discussionbut instead directs the readerto the State Department’s “ International Religious Freedom Report .” R., Vol. 1 at 166. That report is not part of the record.11 worse than the treatment of such converts at the time of Mr. No ori’s prior proceedings. The petition for review is therefore denied. 2

Entered for the Court

Monroe G. McKay Circuit Judge

2 Mr. Noori alleges that in denyi ng his motion to reopen, the BI A treated him differently than a Jewish woman from the Ukraine, whose removal proceedings the BIA reopened due to ch anged country conditi ons there. He claim s that because his case is even stronger than that of the Ukrainian woman (who was also represented by Mr. Noori’s counsel), the only ra tional explanation for this di sparity is the current administration’s prejudice agains t Islam and Iran. In light of our conclusion that the BIA did not abuse its discreti on in determining, on this record , that the treatment of Christian converts in Iran in 2017 was not substantially worse than its treatment of those converts during Mr. Noori’ s prior proceedings, we reject this allegation as wholly speculative. Moreover, the re is a complete lack of evid ence to support the claim that Mr. Noori’s case is st ronger than the Ukrainian woma n’s case.