Aji v. Holder

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 12 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HASSAN AJI, No. 07-71284
Petitioner, Agency No. A078-750-805
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
HASSAN AJI, No. 07-73502
Petitioner, Agency No. A078-750-805
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 31, 2011
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule. 36-3.
Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Hassan Aji, a native and citizen of Syria, petitions for review of two Board
of Immigration Appeals (“BIA”) decisions. We have jurisdiction pursuant to
8 U.S.C. § 1252, and we deny the petition.
I
Accepting Aji’s explanation for his delay in filing his asylum application as
an undisputed fact, we conclude that the agency did not err in denying his
application as time barred. Aji’s subjective belief that his family members in Syria
might come to harm if he applied for asylum did not demonstrate the type of
extraordinary circumstances that would excuse the late filing of his application,
such as serious illness, legal incapacity, or ineffective assistance of counsel. 8
U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(5)(i)-(iii).
II
With respect to Aji’s withholding of removal and Convention Against
Torture (“CAT”) claims, the record evidence supports the agency’s determination
that significant inconsistencies existed between the event described in his
application and his account during his merits hearing of the harm he suffered and
feared in Syria. See Don v. Gonzales, 476 F.3d 738, 742 (9th Cir. 2007)
(concluding that “the lack of details regarding the event that allegedly spurred the
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[claimed persecution] goes to the heart of [the applicant’s] persecution claim and is
not trivial”); Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir. 2006) (“An
inconsistency goes to the heart of a claim if it concerns events central to
petitioner’s version of why he was persecuted and fled.”). The record reflects that
Aji was given an opportunity to explain the inconsistencies, see Joseph v. Holder,
600 F.3d 1235, 1244-45 (9th Cir. 2010); and it does not compel the conclusion that
the person who assisted him in preparing his asylum application failed to record
accurately his account. Accordingly, substantial evidence supports the agency’s
denial of Aji’s application for withholding of removal and relief under CAT on the
basis of the adverse credibility finding.
III
The BIA did not abuse its discretion in denying Aji’s motion to reopen his
removal proceedings in order to permit him to apply for adjustment of status under
Section 245(i), 8 U.S.C. § 1255(i), on the basis of an immigrant visa petition filed
by his first wife on April 30, 2001. Aji’s submission of only a copy of the filing
receipt for that immigrant visa petition (the so-called “grandfathering petition” for
purposes of Section 245(i) eligibility) gave no indication of whether the petition
was approvable when filed. See 8 CFR § 1003.2(c)(1) (“A motion to reopen
proceedings for the purpose of submitting an application for relief must be
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accompanied by the appropriate application for relief and all supporting
documentation.”); see also 8 C.F.R. § 1245.10(a)(3) (defining “approvable when
filed” requirement for grandfathering under INA Section 245(i) to mean that “as of
the date of the filing . . ., the qualifying petition . . . was [1] properly filed, [2]
meritorious in fact, and [3] non-frivolous (‘frivolous’ being defined herein as
patently without substance)”). At most, the filing receipt for the grandfathering
petition establishes that the petition was “properly filed.” 8 CFR §
1245.10(a)(2)(i) (“Properly filed means . . . [w]ith respect to a qualifying
immigrant visa petition, that the application was physically received by the Service
on or before April 30, 2001, or if mailed, was postmarked on or before April 30,
2001, and accepted for filing . . . .”). It provides no further indication of whether
the grandfathering petition was “approvable when filed.”
DENIED.
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