Ophilia Asanga v. Eric Holder, Jr. , 478 F. App'x 65 ( 2012 )

Case: 11-60307 Document: 00511800232 Page: 1 Date Filed: 03/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2012
No. 11-60307
Summary Calendar Lyle W. Cayce
Clerk
OPHILIA BIH ASANGA,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A096 088 942
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Ophilia Bih Asanga, a native and citizen of Cameroon, petitions for review
of the Board of Immigration Appeals’ (BIA) 4 April 2011 denial of her motion to
reconsider its 1 October 2010 denial of her motion to reopen her asylum and
withholding-of-removal proceedings. (The BIA also construed Asanga’s motion
to reconsider as a second motion to reopen because Asanga attached evidence.
Asanga does not challenge the denial of such second motion to reopen.)
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-60307
Asanga must identify some error of fact or law in the denial of her first
motion to reopen. 8 C.F.R. § 1003.2(b)(1). Review is under a “highly deferential
abuse-of-discretion standard”. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005). Relief is warranted only if denial of the motion to reconsider was
“capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach”. Id. at 304 (internal quotation marks removed).
Asanga’s original asylum application was based on her claimed
membership in the Social Democratic Front and the Southern Cameroon
National Council (SCNC). Following an evidentiary hearing, the Immigration
Judge rejected Asanga’s application, concluding for various reasons that Asanga
lacked credibility and that some of her documents appeared fraudulent. Asanga
appealed, and the BIA affirmed. Asanga’s petition for review was denied
Asanga v. Gonzales, 228 F. App’x 433, 434 (5th Cir. 2007).
In her motion to reopen based on changed country conditions, Asanga
asserted that her increased SCNC activity in the United States had led to the
arrest of family members in Cameroon. As a threshold matter, we reject
Asanga’s contention that the BIA erroneously failed to apply a prima facie
standard to this claim. The BIA had discretion to conclude, as it did, that
Asanga had not come forward with previously unavailable, material evidence,
rather than determining whether she had made a prima facie case. INS v.
Abudu, 485 U.S. 94, 104-05 (1988); Panjwani v. Gonzales, 401 F.3d 626, 632 n.7
(5th Cir. 2005).
Regarding the merits of her claim, Asanga contends the BIA erred in not
considering the alleged new policy and tactics by the Cameroon Government of
targeting overseas activists and their families. Asanga’s motion to reopen,
however, made no mention of any new policy; the changed conditions she
expressly cited in the motion and her supporting affidavit were her political
activism in the United States, monitoring by the Cameroon Embassy, and the
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No. 11-60307
arrests of her brother and sister. Fear of persecution based on political activity
in the United States is not based on changed country conditions but on personal
circumstances. E.g., Zhu Di Zhang v. Holder, 421 F. App’x 383, 383 (5th Cir.
2011). Further, affidavits and other evidence attached to Asanga’s motion to
reopen either made no mention of a change in policy by the Cameroon
Government, or referred to instances reflecting a policy change from 2003 to
2005, well before the 2008 change alleged by Asanga.
DENIED.
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