Al-Mousa v. Holder

Case: 07-61003 Document: 00511168854 Page: 1 Date Filed: 07/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 9, 2010
No. 07-61003
Summary Calendar Lyle W. Cayce
Clerk
ABD ALRAHMAN AL-MOUSA
Petitioner
v.
ERIC H HOLDER, US ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A74 409 240
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The petition for rehearing is DENIED. However, we withdraw our prior
opinion, Al-Mousa v. Holder, No. 07-61003, 2010 WL 1141567 (5th Cir. Mar. 17,
2010), and substitute the following.
Abd Alrahman Al-Mousa, a native and citizen of Syria, petitions for review
of the Board of Immigration Appeals (BIA) denial of his 2007 motion to reopen
his removal proceedings. Al-Mousa was removed to Syria in 2005. The BIA
rejected his motion to reopen based upon 8 C.F.R. § 1003.2(d), which provides in
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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relevant part that “[a] motion to reopen . . . shall not be made by or on behalf of
a person who is the subject of . . . removal proceedings subsequent to his . . .
departure from the United States.”
Al-Mousa argues that the BIA’s denial of his motion to reopen based upon
8 C.F.R. § 1003.2(d) was contrary to the language of 8 U.S.C. § 1229a(c)(7)(A),
which provides: “An alien may file one motion to reopen proceedings under this
section . . . .” In support of his argument, he relies in part on the Fourth
Circuit’s opinion in William v. Gonzales, 499 F.3d 329, 331–32 (4th Cir. 2007),
and the Ninth Circuit’s opinions in Lin v. Gonzales, 473 F.3d 979, 981–82 (9th
Cir. 2007), and Reynoso-Cisneros v. Gonzales, 491 F.3d 1001, 1002 (9th Cir.
2007).
We find that Al-Mousa’s motion to reopen was untimely; accordingly, we
do not reach the issue of whether 8 C.F.R. § 1003.2(d) is contrary to
§ 1229a(c)(7)(A). Generally, a petitioner must file a motion to reopen within
ninety days of the BIA’s decision. 18 U.S.C. § 1229a(c)(7)(C)(i). It is undisputed
that Al-Mousa did not file his motion within this ninety-day period. Al-Mousa
argues that his motion to reopen was not untimely because, under
§ 1229a(c)(7)(C)(ii), “[t]here is no time limit on the filing of a motion to reopen if
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.”
Al-Mousa tries to establish changed country conditions by asserting that
after his return to Syria, he was imprisoned, tortured, held incommunicado, and
sentenced to death, although his death sentence later was commuted. While Al-
Mousa’s experiences since his return truly are deplorable, they do not amount
to changed country conditions. In his initial application for withholding of
removal, Al-Mousa asserted that he would be arrested and tortured if returned
to Syria. In his motion to reopen, Al-Mousa argues that events have unfolded
“exactly as he had feared and previously expressed.” Al-Mousa’s assertions
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describe an ongoing repressive governmental policy which has become more
relevant to him since his return to Syria. This does not constitute a “change” as
we have defined that term.
The instant case is similar to Keivani v. Gonzales, where we found that
Keivani had failed to establish changed country conditions under
§ 1229a(c)(7)(C)(ii). 214 F. App’x 469, 470 (5th Cir. 2007) (per curiam)
(unpublished). Keivani, a citizen of Iran, contended that her conversion to
Christianity constituted changed country conditions. Id. We disagreed, noting
that “[e]vidence presented by Keivani establishes that any policy of torturing or
persecuting Christians in Iran preceded her initial hearing before the BIA.” Id.
We reasoned that “[t]he fact that Keivani’s conversion made this fact more
relevant to her case” did not indicate a changed country condition. Id. Likewise,
in Zhang v. Gonzales, Zhang argued that changed country conditions existed
because of new government threats against him due to his Falun Gong activities.
210 F. App’x 438, 439 (5th Cir. 2006) (per curiam) (unpublished). We disagreed,
explaining that “the policy at issue here was discoverable prior to Zhang’s first
hearing even if it only became material for the first time at a later date.” Id.; see
also Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130–31 (2d Cir. 2005)
(affirming denial of motion to reopen when the birth of a second child raised for
the first time the possibility of persecution under China’s preexisting “one child”
policy). Here, the policy at issue was discoverable prior to Al-Mousa’s first
hearing. Accordingly, simply because the policy is now being applied to Al-
Mousa does not constitute changed country conditions.
Because § 1229a(c)(7)(C)(ii) does not apply, Al-Mousa is subject to the
ninety-day limitations period of § 1229a(c)(7)(C)(i). However, Al-Mousa’s motion
to reopen was untimely under § 1229a(c)(7)(C)(i), and our decision in Ovalles v.
Holder bars his arguments. In Ovalles, we first concluded that because
§ 1229a(c) did not grant Ovalles the right to file an untimely motion to
reconsider or reopen, he could not rely on that statute to challenge the validity
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of the post-departure bar in § 1003.2(d). 577 F.3d 288, 296, 299-300 (5th Cir.
2009). Similarly, in this case, Al-Mousa cannot rely on § 1229a(c)(7)(A) to
challenge the post-departure bar in § 1003.2(d) because his motion to reopen,
which was filed in 2007, more than ninety days after the 2003 final order of
removal, was untimely. See id.; § 1229a(c)(7)(C).
In Ovalles, we also rejected Ovalles’s reliance on the Ninth Circuit’s
opinions in Lin and Reynoso-Cisneros for the proposition that § 1003.2(d) did not
apply to his case because he was no longer the subject of a removal proceeding.
Ovalles, 577 F.3d at 297–98. We concluded that the post-departure bar on
motions to reconsider and reopen applied and was intended to apply to aliens
who departed the country following the termination of their removal
proceedings. Id.Because of our holding in Ovalles and Al-Mousa’s failure to establish
changed country conditions, Al-Mousa’s petition for review is DENIED.
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