Volavola v. Holder

FILED
NOT FOR PUBLICATION FEB 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MATEO ARIKOLI MAINAKAVIKA No. 07-72731
VOLAVOLA; et al.,
Agency Nos. A075-723-402
Petitioners, A078-112-136
A078-112-137
v. A078-112-138
ERIC H. HOLDER Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges
Mateo Arikoli Mainakavika Volavola, his wife, and children petition for
review of the Board of Immigration Appeals’ (“BIA”) order denying Volavola’s
motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. §
*
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).
NV/Research
1252. We review for abuse of discretion the denial of a motion to reopen, see
Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the petition for
review.
We reject Volavola’s contention that the BIA erred by failing to
acknowledge or weigh evidence submitted with the motion to reopen. See
Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006).
The BIA did not abuse its discretion in denying Volavola’s motion to reopen
based on changed circumstances because he failed to establish the 2006 coup in
Fiji resulted in material changes that warrant reopening or that he is now prima
facie eligible for asylum. See Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004)
(“The critical question is. . . whether circumstances have changed sufficiently so
that a petitioner who previously did not have a legitimate claim for asylum now has
a well-founded fear of future persecution.”).
We decline to consider Volavola’s challenge to the BIA’s April 20, 2005
order denying asylum, withholding of removal and protection under the
Convention Against Torture because the contentions have already been considered
and rejected by this court. Volavola v. Gonzales, 225 Fed.Appx. 559 (9th Cir.
2007); see also Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991) (explaining
that under the ‘law of the case doctrine,’ one panel of an appellate court will not
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reconsider questions which another panel has decided on a prior appeal in the same
case).
Finally, because the BIA correctly found in its April 20, 2005 order that
Volavola had not demonstrated past persecution, the BIA did not err by not
addressing Volavola’s humanitarian asylum claim in the motion to reopen.
8 C.F.R. § 1208.13(b)(1)(iii); see also Hanna v. Keisler, 506 F.3d 933, 939 (9th
Cir. 2007).
PETITION FOR REVIEW DENIED.
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