FILED
NOT FOR PUBLICATION OCT 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAMA GUIYE, No. 08-71968
Petitioner, Agency No. A096-148-615
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
DAMA GUIYE, No. 09-73515
Petitioner, Agency No. A096-148-615
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted October 5, 2010
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: THOMAS and M. SMITH, Circuit Judges, and HOGAN, District Judge.**
Petitioner Dama Guiye, a native and citizen of Mauritania, seeks review of
decisions of the Board of Immigration Appeals (“BIA”) affirming the decision of
an immigration judge (“IJ”) and denying Guiye’s motion to reopen. We deny the
petitions for review. Because the parties are familiar with the factual and
procedural history of these cases, we need not recount it here.
I
The BIA employed the incorrect standard in addressing Guiye’s contention
that he suffered persecution by “‘forces the government is either unable or
unwilling to control.’” Rahimzadeh v. Holder, 613 F.3d 916, 920 (9th Cir. 2010)
(quoting Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004)). Rather than
analyzing the claim under the correct standard, the BIA rejected the claim because
the persecution did not occur “by or at the behest of the Mauritanian government.”
Normally, that error would require remand. Ornelas-Chavez v. Gonzales,
458 F.3d 1052, 1058 (9th Cir. 2006). However, substantial evidence supports the
BIA’s conclusion that the alleged harm that Guiye experienced did not rise to the
threshold level of harm required to establish persecution within the meaning of the
**
The Honorable Michael R. Hogan, United States District Judge for the
District of Oregon, sitting by designation.
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Immigration and Nationality Act. Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th
Cir. 2003). Therefore, we cannot say that the BIA erred in concluding that Guiye
did not meet the “high standard” of demonstrating that it is “more likely than not”
that he will be persecuted on account of a protected ground. Gui v. INS, 280 F.3d
1217, 1230 (9th Cir. 2002) (internal quotation marks omitted). Accordingly,
remand is not required in this case.
II
The BIA did not abuse its discretion in denying Guiye’s motion to reopen as
untimely filed. Guiye’s motion, which was filed almost a year late, could be
deemed timely if it alleged “‘changed circumstances arising in’” Mauritania.
Azanor v. Ashcroft, 364 F.3d 1013, 1022 (9th Cir. 2004) (quoting 8 C.F.R. §
3.2(c)(3)(ii)). The evidence submitted by Guiye did not show that circumstances
had changed in Mauritania; rather, it further substantiated evidence about country
conditions that Guiye had submitted previously. Malty v. Ashcroft, 381 F.3d 942,
945 (9th Cir. 2004) (“The critical question is . . . whether circumstances have
changed sufficiently that a petitioner who previously did not have a legitimate
claim . . . now” does. (emphasis added)). Therefore, the BIA did not err in
denying the motion to reopen.
PETITIONS DENIED.
3