Daniel Habtemariam v. U.S. Attorney General

USCA11 Case: 25-12403 Document: 27-1 Date Filed: 08/10/2026 Page: 1 of 11

NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit ____________________ No. 25-12403 Non-Argument Calendar ____________________

DANIEL M. HABTEMARIAM,

Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals Agency No. A208-679-302 ____________________

Before JORDAN, LAGOA, and KIDD, Circuit Judges.

PER CURIAM:

Daniel Habtemariam seeks review of the Board of Immigra- tion Appeals’ (“BIA”) order dismissing his appeal because the BIA found that Immigration Judge (“IJ”) did not err in denying his mo- tion to reopen. He argues that the BIA failed to give reasoned con- sideration to the evidence underlying his motion to reopen and abused its discretion by dismissing his case.

I.

Habtemariam is a native and citizen of Eritrea, who entered the United States in October 2015 and applied for admission with- out a visa or other entry document. 1 He was interviewed by an asylum officer who found that he had a credible fear of torture. Habtemariam was issued a Notice to Appear by the Department of Homeland Security (“DHS”) charging him with removability un- der 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an applicant for admission not in possession of a valid visa or other entry or travel document. Habtemariam, pro se, filed an application for asylum, withholding of removal, and Convention Against Torture (“CAT”) protection, stating that he feared imprisonment and death on account of his political opinion. In November 2015, the IJ found Habtemariam removable as charged.

In support of his claims, Habtemariam submitted identity documents and an affidavit describing widespread governmental abuses in Eritrea, including mass incarceration and indefinite mili- tary conscription, and recounting that Habtemariam’s father had been jailed, questioned, and deprived by the government of his livestock. The government submitted country-condition reports, including a 2015 United Kingdom Home Office report on Illegal Exit from Eritrea and the 2014 U.S. State Department human-rights report. These materials documented a shoot-to-kill policy at the border targeting those who tried to leave the country, arbitrary de- tention, torture of political prisoners and persons who exited ille- gally, and severe restrictions on political expression in a one-party state.

At the January 13, 2016, merits hearing, Habtemariam testi- fied that Eritrean police had arrested and beaten him in March 2014 on suspicion that he had assisted others in fleeing and planned to flee himself and that he escaped custody, crossing into Ethiopia, Sudan, and other countries before reaching the United States. The IJ issued an oral decision denying Habtemariam asylum and with- holding of removal but granting him withholding of removal un- der CAT. Habtemariam informed the IJ that he accepted the deci- sion and did not state that he wished to appeal. Habtemariam ap- pealed the IJ’s decision to the BIA, which it dismissed because he did not present any argument that his waiver of appeal was not knowing and voluntary.

In September 2020, Habtemariam, through counsel, filed an untimely motion to reopen to apply for asylum based on changed country conditions and requesting sua sponte reopening. He con- tended that previously unavailable material evidence demon- strated that he would be tortured and persecuted if returned to Er- itrea. He alleged that, after his 2014 departure, Eritrean authorities had arrested and severely mistreated his father (who was released in 2017 “on the verge of death”), arrested his wife and one of his sisters (who remain unaccounted for), questioned another sister who fled to Ethiopia in 2018, and prompted his brother to flee in 2019. He further alleged that the Eritrean government revoked a food coupon relied on by his family to purchase food during the COVID-19 pandemic and that his father was forced to participate in the “People’s Militia” as retribution. Habtemariam also de- scribed his participation in the Yiakl opposition movement in the United States through meetings, protests, and online activity, argu- ing that such activity heightened his risk.

In support of his motion to reopen Habtemariam submitted an updated asylum application, a personal affidavit, tax records, a psychological evaluation, an expert affidavit, affidavits from family members, photographs of his participation in the Yiakl movement, and various news articles and country-condition reports.

The IJ denied the motion, finding no material change in country conditions since Habtemariam’s 2016 hearing. The IJ con- cluded that the 2014 family detentions were previously available, characterized his siblings’ flight from Eritrea and his Yiakl activity as changes in personal circumstances, declining to reopen sua sponte given the existing CAT grant and the absence of a substan- tial likelihood of a different outcome.

Habtemariam appealed to the BIA. The BIA dismissed the appeal. It recited the procedural history and the principal evidence and affirmed the IJ’s determination that Habtemariam had shown only a change in personal circumstances rather than a material change in country conditions, found no error in the conclusion that the pre-2016 family detentions were not previously unavailable, and upheld the denial of sua sponte reopening in light of the exist- ing CAT protection. Habtemariam timely petitioned this Court for review.

II.

Habtemariam first contends that the BIA failed to give rea- soned consideration to the evidence underlying his motion to reo- pen. We are not persuaded. To enable our review, the BIA must have given “reasoned consideration” to an application for relief and made “adequate findings.” Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1333 (11th Cir. 2019) (quotation marks omitted). We review de novo whether the BIA afforded “reasoned consideration” to a peti- tioner’s claim. Id.

A reasoned-consideration examination is not a review of the agency’s fact findings or legal conclusions but is a threshold deter- mination of whether the decision is sufficient to permit review. Id. To show reasoned consideration, the BIA need only draft a decision that shows it “has heard and thought about the case and not merely reacted.” Id. (quotation marks omitted, alteration adopted). While the agency has to consider all evidence submitted by a petitioner, it need not specifically address every piece of evidence. Id. at 1333-34. We expect the BIA to “list the basic facts of the case.” Id. at 1336 (quotations marks omitted, alteration adopted). We have sustained reasoned-consideration claims under three sets of circumstances: when the BIA “misstates the contents of the record, fails to ade- quately explain its rejection of logical conclusions, or provides jus- tifications for its decision which are unreasonable and which do not respond to any arguments in the record.” Id. at 1334 (quotation marks omitted).

“In some cases, however, it is practically impossible for the BIA to write a reviewable decision without discussing highly rele- vant evidence.” Id. (quotation marks omitted). “[T]his situation arises when the record would compel a different outcome, absent the discussion of certain evidence.” Id. Unless the BIA discusses that evidence, it “fails to adequately explain its rejection of logical conclusions, thus rendering the decision incapable of review.” Id. (quotation marks omitted).

Here, Habtemariam’s argument that the BIA did not pro- vide reasoned consideration is belied by the record. The BIA pro- vided reasoned consideration of Habtemariam’s arguments and ev- idence because it explicitly considered his arguments, listed the basic facts of the case, and specifically noted his evidence, including the expert declaration, family affidavits, and evidence of political participation in the United States. See Ali, 931 F.3d at 1333. Fur- thermore, none of the circumstances that have previously sup- ported a reasoned-consideration challenge is present. Id. at 1334. We thus reject Habtemariam’s claim that the BIA failed to give rea- soned consideration to his evidence.

III.

Habtemariam next argues that the BIA abused its discretion in affirming the denial of his motion to reopen. He contends that the evidence established a material change in country conditions arising from the emergence of Yiakl movement activity inside Eri- trea, the continued targeting of his family, and the relevance of his own political activity in the United States. For the reasons dis- cussed below, we conclude that the BIA did not abuse its discretion in affirming the denial of the motion to reopen.

A motion to reopen in removal proceedings is particularly disfavored. I.N.S. v. Doherty, 502 U.S. 314, 323 (1992). We review the decision of the BIA, and the decision of the IJ to the extent that the BIA expressly adopts it. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). We review the denial of a motion to reopen for abuse of discretion, considering “whether the BIA exercised its discretion in an arbitrary or capricious manner.” Id. Issues not raised in a petition for review are deemed abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).

The BIA has broad discretion, conferred by the Attorney General, to grant or deny a motion to reopen. 8 C.F.R. § 1003.2(a); Kucana v. Holder, 558 U.S. 233, 250 (2010). Such motions are disfa- vored, especially in a removal proceeding, “where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Doherty, 502 U.S. at 323. The BIA may deny a motion to reopen based on: (1) failure to establish a prima facie case, (2) failure to introduce mate- rial and previously unavailable evidence, or (3) a determination that, despite the alien’s statutory eligibility for relief, he is not enti- tled to a favorable exercise of discretion. Jiang, 568 F.3d at 1256. To qualify for asylum, the applicant must establish persecution or a well-founded fear of persecution if removed to his home country. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1), 1231(b)(3).

Generally, a motion to reopen must be filed within 90 days of the BIA’s final administrative removal order. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This deadline does not apply if the basis of the motion is to apply for asylum or withhold- ing of removal and is based on material evidence of changed coun- try conditions in the home country that could not have been dis- covered or presented at the previous hearing. 8 U.S.C. §1229a(c)(7)(C)(ii). To make such a showing, the noncitizen “bears a heavy burden, and must present evidence of such a nature that the BIA is satisfied that if proceedings before the IJ were reopened, with all attendant delays, the new evidence offered would likely change the result in the case.” Ali, 443 F.3d at 813 (quotation marks omitted, alterations adopted).

In Li v. U.S. Att’y Gen., a Chinese noncitizen filed a motion to reopen based on changed conditions in China, offering her own af- fidavit, an affidavit from her mother, and 2003, 2004, and 2005 U.S. State Department Country reports, that local officials in China had recently begun a campaign of forced sterilization. 488 F.3d 1371, 1372-73 (11th Cir. 2007). Her affidavit set out second-hand ac- counts of forced sterilization in her village postdating her 2004 hearing, and her mother’s affidavit stated that three women in the village were forcibly sterilized. Id. at 1373. The 2003 State Depart- ment report stated that the one-child policy was relaxed in rural areas, despite pressure to undergo sterilization. Id. But the 2004 report, which was previously unavailable, reported that her home province required birth permits and employed unspecified reme- dial measures against unplanned pregnancies. Id. The 2005 report, also previously unavailable, stated that forced sterilization was prevalent in rural provinces where local officials abused their power with impunity and described forced sterilization of thousands in one province. Id. We vacated the denial of the motion to reopen because Li’s evidence of a recent campaign of forced sterilization in her home village, consistent with recent government reports, was material and previously unavailable. Id. at 1375; see also Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1258 (11th Cir. 2009) (holding that noncitizen established changed country conditions because she showed that China’s family planning laws were being more strin- gently enforced in her home province since her order of removal); Zhang v. U.S. Atty. Gen., 572 F.3d 1316, 1320 (11th Cir. 2009) (same).

In contrast, in Blake v. U.S. Att’y Gen., a Jamaican noncitizen failed to provide material and previously unavailable evidence be- cause his “decade-old” evidence “did not reveal anything about contemporary conditions in Jamaica.” 945 F.3d 1175, 1179, 1180 (11th Cir. 2019). We also held that the BIA did not abuse its discre- tion in finding that Blake’s risk of harm arose not from changed country conditions but from changed personal circumstances. Id. at 1179. Blake’s risk arose from the fact that, in 2019, he testified against a Jamaican drug king pin who had been in power since the 1990s, and likely hostile to informants since then, not because Ja- maica became more hostile to informants between Blake’s 2009 or- der of removal and 2019 testimony. Id. We distinguished Blake from Jiang and Zhang because Blake’s evidence was “decade-old” and the BIA did not “ignore, overlook, or inexplicably discount” any evidence he presented. Id. at 1179-80 (quotation marks omit- ted, alteration adopted).

Here, we conclude that the agency did not abuse its discre- tion in denying Habtemariam’s motion to reopen because he failed to introduce material and previously unavailable evidence of changed conditions in Eritrea. The post-2016 country-condition reports and the expert affidavit describe the continuation of longstanding patterns of arbitrary detention, torture of political dissenters and whose who exit illegally, and severe restrictions on expression. The expert declaration itself noted that these practices have existed since the 1990s and intensified in the early 2000s—well before Habtemariam’s hearing in 2016. The BIA, therefore, reason- ably determined that this evidence did not demonstrate a material change in the government’s response to policial dissent or illegal exit between 2016 and 2020. Unlike the evidence in Li and Jiang, Habtemariam’s submissions did not show that Eritrea’s treatment of similarly situated individuals had intensified in a manner that would likely alter the outcome of the case. See Blake, 945 F.3d at 1179–80. The BIA’s characterization of the evidence reflecting con- tinuity rather than material change was therefore not arbitrary and capricious. Moreover, in light of the existing CAT protection, the additional evidence concerning Eritrea did not require granting the motion to reopen.

The BIA likewise did not abuse its discretion in concluding that evidence concerning Habtemariam’s family members was nei- ther new nor material. The arrests of his father, wife, and sister occurred in 2014, years before the 2016 hearing, and therefore were not previously unavailable. Any post-2016 details about the father’s detention added nothing material given that arbitrary detention and torture of detainees were already established country condi- tions. Though Habtemariam’s siblings subsequently fled to Ethio- pia, they did not report having been harmed by the government and the evidence is unlikely to change the result of the proceedings. See Ali, 443 F.3d at 813. Finally, Habtemariam’s voluntary partici- pation in Yiakl activities in the United States constitutes a change in personal circumstances, not a change in Eritrean country condi- tions. See Blake, 945 F.3d at 1179–80.

IV.

For the foregoing reasons, Habtemariam’s petition is de- nied.

PETITION DENIED.