Ali v. Holder , 398 F. App'x 184 ( 2010 )

FILED
NOT FOR PUBLICATION SEP 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHAHEED ALI,
No. 07-70467
Petitioner,
Agency No. A095-566-617
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
SHAHEED ALI,
No. 07-70882
Petitioner,
Agency No. A095-566-617
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 10, 2010 **
Before: SKOPIL, FARRIS and LEAVY, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Shaheed Ali, a native and citizen of Fiji, petitions for review of a decision
issued by the Board of Immigration Appeals (BIA), summarily affirming an
Immigration Judge’s (IJ) denial of asylum, withholding of removal, and
Convention Against Torture (CAT) relief. Ali also petitions for review of the
BIA’s denial of his motion to reopen based on changed country conditions. We
deny the petitions for review.
I.
Ali claimed he was persecuted in Fiji because of his Indo-Fijian ethnicity
and his support for the Fijian Labor Party. Specifically, he testified he was
assaulted by ethnic Fijians who also made threatening phone calls to his family and
ransacked his home. The IJ credited Ali’s testimony, but denied his application,
reasoning that none of the incidents “rises to the level of persecution.” The IJ also
determined, alternatively, that even if Ali had establish past persecution, changed
country conditions in Fiji rebutted the presumption of a well-founded fear of future
persecution.
We agree with the IJ’s alternative ruling. Record evidence demonstrated
that conditions in Fiji changed after Ali’s departure, and the IJ properly provided
an individualized analysis of how these changed conditions rebutted Ali’s fear of
future persecution based on both his ethnicity and political opinion. See 8 C.F.R. §
-2-
1208.13(b)(1)(ii); Mutuku v. Holder, 600 F.3d 1210, 1213 (9th Cir. 2010).
Moreover, Ali spent seven additional months in Fiji without further incident and he
chose not to relocate his work to New Zealand when he had the opportunity. See
Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000) (noting petitioner remained in
Fiji for some time without further incident); Kumar v. Gonzales, 439 F.3d 520, 524
(9th Cir. 2006) (noting petitioner’s voluntary return to Fiji after he had relocated to
New Zealand undermined his claim of persecution in Fiji).
Because Ali is ineligible for asylum, he also fails to meet the higher standard
for withholding of removal. See Valasco-Cervantes v. Holder, 593 F.3d 975, 978
n.4 (9th Cir. 2010). Because he offered no evidence that he might be tortured if he
returns to Fiji, “a reasonable factfinder would not be compelled to find [him]
eligible for CAT relief.” See Tamang v. Holder, 598 F.3d 1083, 1095 (9th Cir.
2010).
II.
Ali moved to reopen his removal proceedings some three years after the IJ’s
decision, alleging that “country conditions . . . are worsening at the moment” and
that he should be permitted to present evidence of these recent changes. We
conclude the BIA did not abuse its discretion by denying the motion. See Feng
Gui Lin v. Holder, 588 F.3d 981, 984 (9th Cir. 2009) (noting standard of review).
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Although Fiji was apparently undergoing substantial political uncertainty, we agree
with the BIA that the changes did not materially impact Ali’s claim of a well-
founded fear of persecution. See Najmabadi v. Holder, 597 F.3d 983, 992 (9th Cir.
2010) (noting petitioner seeking to reopen based on changes in country conditions
must “provide evidence linked to her particular circumstances”).
Ali also argues the BIA erred by not considering additional political changes
in Fiji as set forth in yet another motion to reopen. The record indicates, however,
the BIA did consider those changes in denying Ali’s motion for reconsideration.
There, the BIA acknowledged that a military coup occurred in Fiji and that certain
restrictions had been placed on the media and individuals. Nonetheless, the BIA
again correctly concluded the new evidence does not reflect changed circumstances
that materially impact Ali’s claim. See id.PETITIONS FOR REVIEW DENIED.
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