NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1066

___________

RIAZ TALUKDER,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A093-119-831 )

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 8, 2011

Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

( filed: June 14, 2011 )

___________

OPINION

___________

PER CURIAM

Riaz Talukder, a native and citizen of Bangladesh, petitions for review of an order 

of the Board of Immigration Appeals (“BIA”) that denied his motion to reopen or 
2

reconsider. We will deny the petition for review.

Talukder was placed in removal proceedings in 1998 because he attempted to 

enter the United States without being in possession of proper documents. Talukder 

admitted that he was removable, but applied for asylum and related relief. Talukder‟s 

claims were based on his allegation that he had been, and would be, persecuted by 

members of his wife‟s family, who were part of the Jamaat e-Islami political party. He 

alleged that the wife‟s family members, along with about ten others, severely beat his 

father and him in 1986 after he proposed marriage, because the wife‟s family believed 

that he had turned away from religion; that he was not a good Muslim. A.R. 487-88; 653. 

The Immigration Judge (“IJ”) denied relief. A.R. 395. Taluder appealed. In a decision 

dated September 9, 2002, the BIA “determine[d] that [Talukder] was credible,” and that 

he “fear[ed] persecution from his in-laws because they are religious fanatics.” A.R. 352. 

The BIA assumed for the sake of appeal that his attackers sought to harm him, at least in 

part, on account of religious grounds, and that the harm rose to the level of persecution. 

Id. The BIA denied relief, however, because Talukder had not shown that the 

government was unwilling or unable to protect him from his wife‟s family. Id. The BIA 

also noted that Talukder had not shown that he would be unable to relocate within 

Bangladesh to avoid future persecution. A.R. 353. Talukder did not petition for review 

of this decision.

Nearly eight years later, Talukder filed a motion to reopen, seeking asylum, 

withholding of removal and protection under the Convention Against Torture (“CAT”) 
3

based on changed country conditions. Talukder alleged that the changes included 

“increased fundamentalist activity, the growth of Taliban groups country wide, the 

growth of any-western [sic] hatred and the increase in the ability of these Islamic groups 

to harm and injure [Talukder] and his family at the provocation of [his] wife‟s family, 

along with the police and government‟s willingness or inability to stop the hatred.” A.R. 

101.

In an October 8, 2010 decision, the BIA denied the motion. The BIA recognized 

that a showing of material and previously unavailable changed country conditions would 

excuse the untimeliness of the motion to reopen, but determined that Talukder had “not 

specified how conditions have changed since his 1999 hearing.” A.R. 89. The BIA 

noted that, in particular, Talukder had failed to address the conclusion in the BIA‟s 

previous opinion that he had “failed to demonstrate that the police were unable or 

unwilling to protect him,” and that he had “otherwise failed to present evidence that 

„changed conditions‟ exist in Bangladesh which would materially affect his claim.” Id. 

Talukder did not petition for review of this decision.

Instead, about a month later, Talukder filed a motion requesting reconsideration. 

With his motion, he included eleven exhibits, including current country reports, 

documentation of injuries he received in 1996, documentation to support an allegation 

that one of his brothers was beaten by his wife‟s family in 2002, documentation of an 

alleged attack on another brother by his wife‟s family in 2009, and affidavits regarding 

the notoriety of his wife‟s family and the fact that they are related to the current Minister 
4

of Communications.

The BIA noted that Talukder did not identify any specific error in the BIA‟s 

October 8, 2010 order, and did not point out any change of law. The BIA thus denied the 

motion to reconsider.1 Acknowledging the numerous attachments, the BIA also 

considered the motion as a motion to reopen. The BIA first noted that the motion was 

“both untimely and barred by numerical limitations.” A.R. 3. The BIA again recognized 

that the time limitations (and numerical limitations) do not apply to a motion to reopen 

“based on changed country conditions, if such evidence is material and was not available 

and could not have been discovered or presented at the former hearing.” Id. The BIA 

stated, however, that Talukder had “not indicated why these documents [attached to the 

motion] were not included in his prior motion,” that he had “not articulate[d] any 

changed conditions” since the October 8, 2010 order, and that he also had “not 

demonstrated any changed country conditions which would materially affect his claim for 

asylum in 1999.” Id. The BIA further stated that Talukder had produced insufficient 

evidence to alter the IJ‟s 1999 finding that “[Talukder] had failed to demonstrate that any 

fear he maintained of his in-laws was based on one of the five protected grounds.” A.R. 

4. Talukder filed a timely, counseled petition for review.

We have jurisdiction to review the BIA‟s December 28, 2010 order in which it 

 

1

Talukder does not challenge this portion of the decision.
5

refused to reopen or reconsider the case.2 Kucana v. Holder, 130 S. Ct. 827, 840 (2010). 

Our standard of review is narrow: we review the BIA‟s denial of a motion to reopen or 

reconsider for abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). 

The BIA‟s decision is entitled to “broad deference,” Ezeagwuna v. Ashcroft, 325 F.3d 

396, 409 (3d Cir. 2003) (internal quotation and citation omitted), and it “will not be 

disturbed unless [it is] found to be arbitrary, irrational, or contrary to law,” Guo v. 

Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (internal quotation and citation omitted).

In his brief, Talukder argues that in determining whether country conditions had changed,

the BIA erred in considering the time since the previous motion to reopen, instead of the 

time since the proceedings before the IJ; that the BIA contradicted itself by saying that he 

had not demonstrated that his fear was based on a protected ground; and that it erred in 

failing to find that he made out a prima facie case for relief.3

We agree that the “change” in country conditions that will excuse an otherwise 

untimely motion to reopen is measured from the time that the hearing before the IJ took 

 

2 We lack jurisdiction to review the BIA‟s removal order of September 9, 2002, 

and its October 8, 2010 order denying Talukder‟s first motion to reopen because Talukder 

did not file timely petitions for review of those orders. See 8 U.S.C. § 1252(b)(1) 

(providing for 30-day deadline in which to file petition for review); Stone v. INS, 514 

U.S. 386, 395 (1995) (motion to reopen or reconsider does not toll time to file petition for 

review of BIA‟s underlying removal order). 

3

Talukder also argues that he showed he was likely to be tortured if he returned to 

Bangladesh. We agree with the Government that we lack jurisdiction to consider this 

argument, as Talukder did not raise any claim regarding possible torture in his second 

motion to reopen. 8 U.S.C. § 1252(d)(1). 
6

place. Filja v. Gonzales, 447 F.3d 241, 253-54 (3d Cir. 2006). Nevertheless, we do not 

believe that the BIA abused its discretion in considering that the evidence Talukder 

sought to introduce could have been included with his previous motion to reopen, where 

that motion was based on the same claim, and the same alleged change in country

conditions propounded in his second motion to reopen. We do not believe that Congress 

anticipated that when an alien‟s first motion to reopen failed because he failed to meet his 

burden of establishing a prima facie case, he could continue to file serial motions to 

reopen, based on the same claim and same changes in country conditions, but seeking to 

introduce new evidence.

We also agree that the BIA may have erred in relying on the IJ‟s finding that 

Talukder “had failed to demonstrate that any fear he maintained of his in-laws was based 

on one of the five protected grounds” where, in contrast, in its decision on appeal it had 

assumed for the sake of appeal that his attackers sought to harm him, at least in part, on 

account of religious grounds, and that the harm rose to the level of persecution. 

However, any error was of no consequence, as we agree with the BIA‟s alternative 

holding that Talukder had “not demonstrated any changed country conditions which 

would materially affect his claim for asylum in 1999.” The only changes in country 

conditions that Talukder indicated were that the Awami League party had come into 

power in Bangladesh and that the current Minister of Communications of Bangladesh is 
7

related to his wife‟s family.

4

 

However, whether the political change would make any change in the probability 

that Talukder would be persecuted is somewhat unclear from the evidence he submitted. 

For example, an affidavit from the Rajihar Union Parisad Chairman stated that 

Talukder‟s wife‟s family “is always supported and protected” and that the “police . . . do 

not do anything about the malicious acts committed by” the family “when the BNP party 

is in power.” The affiant opined that now that “the Awami League party is in power . . . 

you would think that this would cut down [the wife‟s family‟s] power because the Awami 

League party has suppressed Islamic fundamentalists and generally brought them under 

control by arresting them for causing trouble” but that the wife‟s family is “a very well 

politically connected family and as such [it] yield[s] more power under the current 

government then [sic] [it] did before.” A.R. 73. But if Talukder‟s in-laws proceeded 

with impunity before the Awami League party came into power, it is not clear how the 

political change can constitute a material change in country conditions. We thus find that 

the BIA did not abuse its discretion in denying the motion to reopen.

For the foregoing reasons, we will deny the petition for review.

 

4

Talukder included an affidavit from someone related to his wife‟s father who 

indicated that the Communications Minister is “from the same family” as Talukder‟s 

father-in-law, but the affidavit does not indicate what the relationship is.