Hassan v. Holder

FILED
NOT FOR PUBLICATION DEC 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MOHAMED ABDULLAH HASSAN, No. 06-74840
Petitioner, Agency No. A095-405-793
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
MOHAMED ABDULLAH HASSAN, No. 07-73583
Petitioner, Agency No. A095-405-793
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted December 9, 2010 **
San Francisco, California
Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.
Mohamed Abdullah Hassan, a native and citizen of Yemen, petitions for
review of the decisions of the Board of Immigration Appeals dismissing his appeal
of the denial of his application for asylum, withholding of removal, and relief
under the Convention Against Torture, as well as denying his motion to reopen.
Hassan’s asylum application was untimely. See 8 U.S.C. § 1158(a)(2)(B)
(requiring filing within one year after arrival). He contends that his father’s death
constitutes a changed or extraordinary circumstance excusing his tardy filing. See
8 U.S.C. § 1158(a)(2)(D). But Hassan asserted essentially the same case for
asylum on an earlier application that preceded the death, and he admitted that he
had decided to stay in the United States ten months prior to learning of the death.
Substantial evidence supports the conclusion that the death was not a changed or
extraordinary circumstance that would excuse his untimely filing. See Dhital v.
Mukasey, 532 F.3d 1044, 1050 (9th Cir. 2008). Furthermore, Hassan’s
unexplained eleven month delay in filing the application after learning of his
father’s death was not reasonable. See Husyev v. Mukasey, 528 F.3d 1172, 1181
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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(9th Cir. 2008) (“[W]here there is no explanation for the petitioner’s delay, [the
petitioner’s] 364-day wait after his lawful nonimmigrant status expired is not a
reasonable period.” (footnote omitted) (emphasis in original)). Hassan is not
eligible to seek relief on grounds of asylum.
We review for substantial evidence the denial of Hassan’s applications for
withholding of removal and relief under the Convention Against Torture. See Lin
v. Holder, 610 F.3d 1093, 1097–98 (9th Cir. 2010). Hassan adduced evidence that
he had been a member and functionary of the Yemeni socialist party. But although
certain of Hassan’s relatives were killed because of political activities, and he
showed that he had been the subject of Yemeni criminal investigations, he
presented no evidence that he would be specially targeted for persecution on
account of his past political activities. This, together with evidence adduced by the
Attorney General that socialist party members are not ordinarily persecuted in
Yemen today, constitutes substantial evidence supporting the conclusion that
Hassan failed to establish a likelihood of persecution or torture. See id. “Ordinary
prosecution for criminal activity is not persecution ‘on account of’ a protected
ground.” Id. at 1097 (citing Dinu v. Ashcroft, 372 F.3d 1041, 1043–44 (9th Cir.
2004)). Nor do past criminal investigations warrant a presumption of future
persecution.
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Finally, we review the denial of Hassan’s motion to reopen for abuse of
discretion. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). Hassan’s
motion was untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i) (allowing only 90 days for
filing motions to reopen). Although Hassan seeks equitable tolling, he has not
shown that the tardiness of his motion was caused by his counsel’s ineffective
representation, rather than his own lack of diligence. See Socop-Gonzalez v. INS,
272 F.3d 1176, 1193 (9th Cir. 2001) (en banc) (permitting equitable tolling in only
limited circumstances). The BIA, noting that counsel had told Hassan that time
was of the essence in filing a motion to reopen, and that this advice had gone
unheeded by Hassan, did not err in concluding that Hassan failed to act with due
diligence. We conclude the agency did not abuse its discretion in denying his
motion to reopen.
PETITION DENIED.
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