Mohammed Haghirian v. Eric Holder, Jr. , 540 F. App'x 309 ( 2013 )

Case: 12-60972 Document: 00512377747 Page: 1 Date Filed: 09/18/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 18, 2013
No. 12-60972
Summary Calendar Lyle W. Cayce
Clerk
MOHAMMED TAGHI HAGHIRIAN,
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. A074 624 543
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Mohammed Taghi Haghirian, a native and citizen of Iran, petitions this
court for review of an order from the Board of Immigration Appeals (BIA)
denying his third motion to reopen removal proceedings. We review the BIA’s
denial of a motion to reopen “under a highly deferential abuse-of-discretion
standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). We will not find
an abuse of discretion unless the decision is “capricious, racially invidious,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60972
utterly without foundation in the evidence, or otherwise so aberrational that it
is arbitrary rather than the result of any perceptible rational approach.” Id. at
304 (internal quotation marks and citation omitted).
Haghirian contends that the BIA erred in denying his motion to reopen
because his prior order of removal had been reinstated. The BIA stated that it
might be prohibited under 8 U.S.C. § 1231(a)(5) from reopening Haghirian’s
immigration proceedings. Nevertheless, the BIA declined to dismiss the motion
on that basis and instead denied his motion to reopen on its merits. Also,
because nothing in the record shows Haghirian’s order of removal was ever
reinstated, he has not shown that he was entitled, under the streamlined
procedures for reinstatement of removal, to have his claim of changed country
conditions considered by an asylum officer.
Although Haghirian concedes that his motion to reopen was filed more
than 90 days after the date on which the final administrative decision was
rendered, he seeks application of the exception when an alien’s request for relief
is based on changed country conditions arising in the country of nationality. See
8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(3)(ii). He has not shown that
the BIA abused its discretion by according limited weight to his supporting
documents. He has also failed to show that the BIA erred by concluding that he
had not shown changed conditions in Iran sufficient to exempt him from the 90-
day deadline. See Zhao v. Gonzales, 440 F.3d 405, 407 (5th Cir. 2005).
Finally, Haghirian argues that his due process rights were violated
because he was not served with the Department of Homeland Security’s
opposition to his motion to reopen. Even if he was not served with that
opposition, his claim fails because he has not established that he was prejudiced
by the alleged omission. See Bouchikhi v. Holder, 676 F.3d 173, 180 (5th Cir.
2012). We decline to consider whether he can establish his prima facie eligibility
for substantive relief because the BIA’s denial was based upon Haghirian’s
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No. 12-60972
failure to demonstrate a change in country conditions. See INS v. Abudu, 485
U.S. 94, 104-05 (1988); Lian v. Mukasey, 294 F. App’x 163, 164 (5th Cir. 2008).
Haghirian’s petition for review is DENIED.
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