Case: 18-11133 Date Filed: 04/30/2019 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-11133 Non-Argument Calendar ________________________ Agency No. A208-690-443 BEREKET OKBAZGHI GEBRENIGUS, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (April 30, 2019) Before MARCUS, BRANCH, and ANDERSON, Circuit Judges. PER CURIAM: Case: 18-11133 Date Filed: 04/30/2019 Page: 2 of 6 Bereket Okbazghi Gebrenigus petitions for review of the order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his second motion to reopen. Gebrenigus argues that (1) the BIA abused its discretion by denying his motion to reopen as time- and number-barred because he presented evidence of changed country conditions in Eritrea; (2) the BIA committed legal and constitutional error by failing to consider record evidence when deciding whether to reopen his case under its sua sponte authority; and (3) we should remand to the BIA with instructions to consider additional evidence that became available after the BIA issued its decision. I. We review the BIA’s decision as the final judgment, unless the BIA expressly adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). When the BIA explicitly agrees with the findings of the IJ, we will review the decision of both the BIA and the IJ as to those issues. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010). We review the BIA’s denial of a motion to reopen removal proceedings for an abuse of discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). This review is limited to determining whether the BIA exercised its discretion in an arbitrary or capricious manner. Id. Generally, an alien may only file one motion to reopen, which must be filed within 90 days of the date of the final removal order. See Immigration and 2 Case: 18-11133 Date Filed: 04/30/2019 Page: 3 of 6 Nationality Act (“INA”) § 240(c)(7)(A), (C)(i), 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). However, the time- and number-bars do not apply if a petitioner seeks reopening of his asylum proceedings based on changed country conditions in the removal country. 8 C.F.R. § 1003.2(c)(3)(ii). Evidence of changed country conditions must be material and must have been unavailable or undiscoverable at the time of the previous hearing. Id. New evidence is material if the petitioner demonstrates that, if the proceedings were opened, the evidence would likely change the result in the case. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256-57 (11th Cir. 2009). In Jiang, we held that the BIA and IJ abused their discretion by denying Jiang’s motion to reopen because although China’s coercive family planning policies had been in effect since 1979, she presented new evidence that family planning laws were being more stringently enforced in her hometown. Id. at 1258. Here, the IJ and BIA did not abuse their discretion in ...
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