Purandhar Dhital v. United Sates Attorney General

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3116
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PURANDHAR DHITAL; SHANTI DHITAL; AYUSH DHITAL,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A098 903 113, A098 903 114, A098 903 116)
Immigration Judge: Honorable Rosalind K. Malloy
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Submitted Pursuant to Third Circuit LAR 34.1(a)
August 7, 2013
Before: FUENTES, HARDIMAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: August 15, 2013)
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OPINION
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PER CURIAM
Purandhar Dhital (“Dhital”), his wife Shanti Dhital, and their son, Ayush Dhital,
seek review of an order of the Board of Immigration Appeals (“BIA”) denying their
motion to reopen their immigration proceedings. For the reasons that follow, we will
deny the petition for review.
Dhital, a native and citizen of Nepal, entered the United States in 1997 on a
student visa. His family entered the country shortly thereafter. The Dhitals stayed in the
United States longer than authorized. In 2005, Dhital applied for asylum, withholding of
removal, and protection under the Convention Against Torture, with his family as
derivative applicants. Dhital claimed a fear of persecution by Maoist guerillas in Nepal.
In 2009, the BIA affirmed the denial of the applications for relief from removal. This
Court denied the Dhitals’ petitions for review, concluding, among other things, that
substantial evidence supported the finding that Dhital did not have a well-founded fear of
persecution. Dhital v. Att’y Gen., 421 F. App’x 194, 197 (3d Cir. 2011) (unpublished
decision).
In 2012, the Dhitals, through counsel, moved to reopen their immigration
proceedings. They asserted that the conditions in Nepal had worsened and that the
Maoists had come into power. The BIA found the motion time-barred and ruled that the
Dhitals had not submitted evidence establishing changed country conditions or
circumstances material to their case, which would excuse their untimely filing. The BIA
determined that nothing in the evidence that related to them or their personal
circumstances was sufficient to satisfy the materiality requirement for reopening. This
petition for review followed.1
1
The BIA also ruled that the Dhitals did not show an exceptional situation warranting the
exercise of its discretion to reopen the proceedings sua sponte. This ruling is not at issue.
2
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the denial of a
motion to reopen for abuse of discretion. Shardar v. Att’y Gen., 503 F.3d 308, 311 (3d
Cir. 2007).
A motion to reopen must be filed within 90 days of the date of entry of a final
administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). The Dhitals’ motion was
filed almost three years after the final administrative order in their case. They thus relied
on the exception to the time requirement allowing a motion to reopen to be filed any time
where the motion is “based on changed country conditions arising in the country of
nationality . . . , if such evidence is material and was not available and would not have
been discovered or presented at the previous proceeding.” Id. § 1229a(c)(7)(C)(ii).
The Dhitals argue in their brief that they submitted new information, including
affidavits and U.S. State Department reports, detailing terrorist activities and establishing
changed circumstances. They contend that the BIA abused its discretion by failing to
mention “this clearly obvious new information” in its decision, Pet’rs’ Br. at 5, and by
issuing a decision lacking specificity and reasoning.
We have recognized that the BIA has a “duty to explicitly consider any country
conditions evidence submitted by an applicant that materially bears on his claim . . . .”
Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008) (quoting Guo v. Gonzales, 463
F.3d 109, 115 (2d Cir. 2006)). Here, the BIA found that the Dhitals had not submitted
such evidence. The Dhitals have not shown otherwise. They state that they submitted
affidavits, but Dhital’s and his wife’s affidavits primarily discuss their earlier asylum
claim and note that the situation in Nepal is “still dire and scary.” A.R. at 50, 52. Ayush
3
Dhital notes in his affidavit that the leader of the Maoist party became Prime Minister,
but the Dhitals do not point to any evidence showing that this change has worsened
conditions or poses a threat to them.2 Similarly, the Dhitals state that they submitted U.S.
State Department reports detailing terrorist activities, but they have not shown a change
in such activities since their proceedings.
The Dhitals continue to claim generalized fears of violence in Nepal based on the
political climate, a claim that we previously rejected. Dhital, 421 F. App’x at 196-97.
They have not demonstrated that the BIA failed to consider evidence of changed country
conditions that materially bears on their claim or otherwise abused its discretion.
Accordingly, we will deny the petition for review.3
2
This case is thus distinguishable from Shardar, where there was evidence that the return
to power of a political party responsible for an alien’s prior persecution caused a sharp
change in country conditions. Shardar, 503 F.3d at 314-15. In addition, although not a
factor in our decision, we recognize that Nepal’s leadership changed again in March
2013. See Resp. Br. at 14 n.3.
3
Petitioners’ motion to sever and remand to the BIA the matter of Ayush Dhital is denied
without prejudice to any relief Ayush Dhital may seek before the BIA.
4