Rajveer Mutti v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAJVEER MUTTI, AKA Rajpal Singh, No. 20-70798
Petitioner, Agency No. A097-744-673
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 7, 2021**
Portland, Oregon
Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges.
Rajveer Mutti (also known as Rajpal Singh), a citizen of India, seeks review
of a Board of Immigration Appeals (BIA) decision denying his untimely and
numerically barred motion to reopen his immigration proceedings, in which Mutti
sought asylum, withholding of removal, and relief under the Convention Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Torture (CAT). We review the denial of a motion to reopen for abuse of discretion
and may grant relief only if the BIA’s decision was “arbitrary, irrational, or contrary
to law.” Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017) (quoting Singh
v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002)). We have jurisdiction under 8 U.S.C.
§ 1252 and deny the petition.
The BIA did not abuse its discretion in denying Mutti’s second motion to
reopen based on changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8
C.F.R. § 1003.2(c)(3)(ii). To show that he was entitled to reopening on that basis,
Mutti had to:
(1) produce evidence that conditions have changed in the country of
removal; (2) demonstrate that the evidence is material; (3) show that
the evidence was not available and would not have been discovered or
presented at the previous hearings; and (4) “demonstrate that the new
evidence, when considered together with the evidence presented at the
original hearing, would establish prima facie eligibility for the relief
sought.”
Agonafer, 859 F.3d at 1204 (quoting Toufighi v. Mukasey, 538 F.3d 988, 996 (9th
Cir. 2008)).
The BIA did not abuse its discretion in concluding that Mutti failed to show
that conditions had materially worsened in India since his original immigration
proceedings more than a decade earlier. The BIA could reasonably conclude that
Mutti’s participation in a rally in New York was a change in personal circumstances.
See Rodriguez v. Garland, 990 F.3d 1205, 1209 (9th Cir. 2021) (citing Chandra v.
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Holder, 751 F.3d 1034, 1037 (9th Cir. 2014) (explaining that, although “personal
circumstances may be relevant to a motion to reopen based on changed country
conditions,” a petitioner must “provid[e] sufficient evidence of related changed
country conditions”)).
The BIA also reasonably concluded, based on an Immigration Judge’s prior
adverse credibility determination and the contradictions between Mutti’s motion to
reopen and his earlier testimony, that Mutti’s allegations of changed country
conditions were “inherently unbelievable.” See Agonafer, 859 F.3d at 1203 (quoting
Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991)). Mutti had previously testified
before an Immigration Judge that he was not politically active in India, which
contradicted Mutti’s new claim that he had been “abused, tortured, and threatened
in the past for fighting for” his beliefs. Evidence in the record also supported the
BIA’s determination that circumstances had not changed in ways material to Mutti
since his original removal proceedings. The materials Mutti submitted in connection
with his motion to reopen did not require the BIA to conclude otherwise.
For substantially the same reasons, the BIA also did not abuse its discretion
or apply an incorrect legal standard in concluding that Mutti had not established a
prima facie case for asylum, withholding of removal, or CAT protection. See Silva
v. Garland, 993 F.3d 705, 718–19 (9th Cir. 2021). On this record, the BIA could
conclude that Mutti did not meet his “heavy burden of proving that, if proceedings
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were reopened, the new evidence would likely change the result in the case.” Young
Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (quotations omitted).
We reject Mutti’s argument that the BIA failed to consider his arguments or
explain its decision. The record does not support Mutti’s assertions. We further
reject Mutti’s argument that the BIA mischaracterized the evidence, because even
assuming the BIA committed any such error, it was harmless.
PETITION DENIED.
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