Opinion
No. 06-60351 Summary Calendar.
January 23, 2007.
Yvette Marie Mastin, Houston, TX, for Petitioner.
Thomas Ward Hussey, Director, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Caryl G. Thompson, U.S. Immigration Naturalization Service, District Directors Office, New Orleans, LA, Sharon A. Hudson, U.S. Citizenship Immigration Services, Houston, TX, for Respondent.
Alberto R. Gonzales, U.S. Department of Justice, Washington, DC, pro se.
Petition for Review of an Order of the Board of Immigration Appeals. BIA No. A95 534 120.
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
Fariba Keivani, a native and citizen of Iran, petitions this court for review of the BIA's denial of her motion to reopen removal proceedings. Keivani concedes that she previously filed a motion to reopen and that her instant motion was filed more than 90 days after the BIA completed its administrative review, contrary to the rules in 8 C.F.R. § 1003.2(c)(2). She contends, however, that she is not subject to these rules because her conversion to Christianity resulted in changed country conditions in Iran. The BIA rejected this argument and denied Keivani's motion to reopen, reasoning that an individual's religious conversion did not constitute a change in a country's conditions.
An alien is not bound by number or timing requirements for filing a motion to reopen if her request for relief "is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding." 8 U.S.C. § 1229a(c)(7)(C)(ii); § 1003.2(c)(3)(H). Evidence presented by Keivani establishes that any policy of torturing or persecuting Christians in Iran preceded her initial hearing before the BIA. The fact that Keivani's conversion made this fact more relevant to her case does not establish a "changed country condition," as required by § 1229a. The BIA did not abuse its discretion in denying Keivani's motion to reopen. See Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006).
Keivani also argues that the BIA's failure to consider her requests for non-discretionary relief, in the forms of with-holding of removal and relief under the Convention Against Torture, constituted a denial of due process. Because Keivani failed to raise this claim before the BIA, and because the BIA could have corrected any due process problem by granting the motion to reopen, the claim is unexhausted and this court is barred from considering it. Roy v. Ashcroft 389 F.3d 132, 137 (5th Cir. 2004); Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001). Keivani's petition for review is DENIED.