Igor Vasilievich KONAYEV, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 371 F. App'x 243

SUMMARY ORDER Petitioner Igor Vasilievich Konayev, a native and citizen of Kazakhstan, seeks review of a November 17, 2008, order of the BIA denying his motion to reopen. In re Igor Vasilievich Konayev, No. [ AXXX XXX XXX ] (B.I.A. Nov. 17, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case. This Court reviews the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam).

There is no dispute that Konayev’s June 2008 motion to reopen was untimely because the agency issued a final order of removal in August 2004. See 8 C.F.R. § 1003.2(c)(2). However, there is no time or numerical limitation for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3) (ii).

Here, the BIA abused its discretion by failing to consider material evidence submitted by Konayev in support of his motion to reopen. Shou Yung Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir.2006). “Despite our generally deferential review of IJ and BIA opinions, we require ... some indication that the [BIA] considered material evidence supporting a petitioner’s claim.” Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir.2005).

Much of the over 700 pages of evidence submitted with Konayev’s motion was arguably material to changed country conditions in Kazakhstan and his claim that he has a well-founded fear of persecution based on his religion. Yet, the BIA failed to indicate in its decision that it considered substantial pieces of evidence bearing materially on Konayev’s claim.

Rather, it improperly placed “excessive reliance” on published reports of the Department of State and quoted selected passages from an expert affidavit to conclude that “the evidence submitted with the respondent’s motion does not demonstrate that he will face persecution by the government, nor does it demonstrate that the government would be unwilling or unable to protect the respondent from harm.” S.P.A.3. See Tian-Yong Chen v. I.N.S., 359 F.3d 121, 130 (2d Cir.2004).

Because Konayev submitted evidence material to his claim that country conditions in Kazakhstan have changed with regard to the treatment of non-traditional evangelical registered Baptist church members such as himself, the BIA’s failure to consider the evidence was an abuse of discretion. Thus, remand is warranted in order to allow the BIA to consider Konayev’s evidence of changed country conditions and whether he can establish a well-founded fear of persecution. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005).

For the foregoing reasons, the petition for review is GRANTED and the case is REMANDED for further proceedings consistent with this decision. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.