Devi v. Holder

FILED
NOT FOR PUBLICATION MAR 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MANJULA DEVI, No. 07-72228
Petitioner, Agency No. A079-245-703
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 17, 2011
San Francisco, California
Before: SCHROEDER and THOMAS, Circuit Judges, and ADELMAN, District
Judge.**
Manjula Devi, a native and citizen of Fiji, petitions for review of an order of
the Board of Immigration Appeals (“BIA”) denying her motion to reopen
proceedings for further consideration of her applications for asylum, withholding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lynn S. Adelman, District Judge for the United States
District Court for the Eastern District of Wisconsin, sitting by designation.
of removal, and protection under the Convention Against Torture (“CAT”) on the
basis of changed country conditions. Devi previously asserted past persecution
and a fear of future persecution on account of her Indo-Fijian ethnicity and sought
to reopen based on a military coup. The BIA concluded that there were changed
conditions, but that they did not materially affect Devi’s eligibility for relief. The
BIA also held that Devi did not qualify for relief under 8 C.F.R.
§ 1208.13(b)(1)(iii)(B), which provides relief if there is a reasonable possibility of
suffering “other serious harm” if returned to the country of origin.
Petitioner argues that the BIA erred in concluding that she failed to establish
changed country conditions which materially affect her eligibility for asylum,
withholding of removal, and relief under CAT. The BIA did not err. The evidence
provided by Petitioner reflected general political unrest but did not show that Indo-
Fijians were being persecuted or that their life or freedom were being threatened
because of their ethnicity. See 8 U.S.C. § 1101(a)(42)(A) (explaining that an
asylum applicant must be unable or unwilling to return to her country of nationality
“because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion”)
and 8 U.S.C. § 1231(b)(3) (providing for withholding of removal if it is more
likely than not that “the alien’s life or freedom would be threatened in [the country
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of removal] because of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion”). Additionally, Petitioner’s new
evidence of a political power struggle does not demonstrate “that it is more likely
than not that . . . she would be tortured if removed to” Fiji. 8 C.F.R.
§ 208.16(c)(2).
As Petitioner conceded during oral argument, 8 C.F.R.
§ 1208.13(b)(1)(iii)(B) applies only to applicants who have established past
persecution and where the presumption of future persecution has been rebutted by
changed conditions or the possibility of internal relocation. See Belishta v.
Ashcroft, 378 F.3d 1078, 1081 (9th Cir. 2004) (holding that 8 C.F.R.
§ 1208.13(b)(1)(iii)(B) “provides a second avenue of relief for victims of past
persecution whose fear of future persecution on account of a protected ground has
been rebutted by evidence of changed country conditions or of safe harbors within
his or her home country”).
Petition DENIED.
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