FILED
NOT FOR PUBLICATION NOV 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ESTEPHAN GIBRAN SARKIS, No. 06-72875
Petitioner, Agency No. A091-899-629
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
ESTEPHAN GIBRAN SARKIS, No. 08-71635
Petitioner, Agency No. A091-899-629
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 6, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: THOMPSON, FERNANDEZ and SILVERMAN, Circuit Judges.
Estephan Gibran Sarkis, a native and citizen of Lebanon, petitions for review
of two decisions by the Board of Immigration Appeals (“BIA”). First, Sarkis
petitions for review of a May 10, 2006, decision affirming the Immigration Judge’s
(“IJ”) denial of Sarkis’ applications for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). Sarkis also petitions for review of
the BIA’s March 31, 2008, denial of his motion to reopen removal proceedings.
We have jurisdiction under 8 U.S.C. § 1252. We deny Sarkis’ petition in part and
grant it in part. We remand the petition and the motion to reopen to the BIA.
1. Denial of asylum, withholding of removal, and relief under the CAT
Sarkis contends the IJ and the BIA denied him due process by refusing to
consider whether he met the changed circumstances exception to the one-year
deadline to file his asylum application. See INA § 208(a)(2)(B), 8 U.S.C.
§ 1158(a)(2)(B) (one-year time bar); INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D)
(changed circumstances exception). We review claims of due process violations de
novo. Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006).
Neither the IJ nor the BIA deprived Sarkis of his due process rights. A due
process violation occurs when “the proceeding was so fundamentally unfair that
the alien was prevented from reasonably presenting his case,” and the asserted
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violation caused actual prejudice. Id. at 620-21 (internal quotations and citation
omitted). Contrary to Sarkis’ contentions, the IJ gave Sarkis’ former counsel
ample opportunity to present evidence of changed conditions. Both the IJ and the
BIA considered the evidence and correctly concluded that Sarkis had not met the
requirements for the INA § 208(a)(2)(D) exception. Further, any supposed error
by the IJ or the BIA was not prejudicial because the record demonstrates, and
Sarkis conceded at oral argument, that his circumstances had not actually changed.
Hence, even given additional opportunity to present evidence, he could not have
met the changed circumstances exception to the asylum application deadline. We
therefore deny Sarkis’ petition as to his due process claim.
Sarkis also petitions for review of the BIA’s denial of withholding of
removal under Immigration and Nationality Act § 241(b)(3), 8 U.S.C.
§ 1231(b)(3), and relief under Article 3 of the Convention Against Torture. Sarkis
contends the BIA erred when it found that a fear of conscription into the Lebanese
military could not amount to persecution under the Act, even though the Lebanese
military was controlled by Syria at the time. We review this question of law de
novo. See Aguilar Gonzalez v. Mukasey, 534 F.3d 1204, 1208 (9th Cir. 2008).
In general, an alien’s desire to avoid compulsory service in his country’s
military does not support a well-founded fear of future persecution. Castillo v.
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I.N.S., 951 F.2d 1117, 1122 (9th Cir. 1991) (concluding that being forced to serve
in the military, where alien believed the military was “absurd,” was not an
objectively reasonable ground for a fear of persecution). But rather than fearing
service in his own country’s military, Sarkis claimed that conscription would
essentially require him to serve under the occupying Syrian government.
We conclude that the BIA erred by failing to acknowledge that this
distinction is the essence of Sarkis’ argument. We thus remand to the BIA to
consider, in the first instance, whether the military situation is as Sarkis claims, and
if so, whether an alien’s desire to avoid compulsory military service in his native
country may support a well-founded fear of persecution when a hostile foreign
government occupies or controls the country’s military.
2. Denial of Sarkis’ motion to reopen
Sarkis next challenges the BIA’s denial of his motion to reopen removal
proceedings. He argues that the BIA erred when it refused to consider how his
changed personal circumstances—namely, his marriage to a Jewish woman after a
five-year relationship—could contribute to a fear of persecution in light of changed
country conditions within Lebanon. We review the BIA’s denial of a motion to
reopen for abuse of discretion. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.
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2010). An error of law constitutes an abuse of discretion. Cerezo v. Mukasey, 512
F.3d 1163, 1166 (9th Cir. 2008).
The BIA based its refusal to consider Sarkis’ personal circumstances in light
of changes in Lebanon on precedent that is not squarely on point. The BIA relied
on a line of cases in which aliens attempted to meet the “changed country
conditions” exception to the 90-day filing deadline for motions to reopen by
presenting evidence of changed personal circumstances without accompanying
evidence of changed country conditions. See, e.g., Chang Hua He v. Gonzales,
501 F.3d 1128, 1130 (9th Cir. 2007). In such a case, “absent additional evidence
of changed circumstances in [the country of origin],” evidence of changed personal
circumstances alone does not establish changed conditions within the country of
origin for purposes of the INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii),
time bar exception. Id. at 1132; see also id. at 1133 (“We hold that the birth of a
child outside the country of nationality is insufficient, on its own, to establish
changed circumstances within the meaning of 8 C.F.R. § 1003.2(c)(3)(ii).”
(emphasis added)); accord Najmabadi, 597 F.3d at 991 (dicta).
We approve of the general rule that a voluntary change in personal
circumstances alone is not a sufficient ground to reopen under the changed country
conditions exception to the 90-day time bar. However, we note two important
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distinctions between Sarkis’ situation and the Chang Hua He line of cases. First,
unlike in Chang Hua He, the BIA did not make a finding that Sarkis failed to come
within the changed country conditions exception. The Board also did not find his
motion untimely. More importantly, Sarkis offers evidence of both changed
country conditions and changed personal circumstances. Chang Hua He and
related cases do not address whether, assuming the petitioner has shown changed
country conditions, the BIA should consider evidence of changed personal
circumstances in combination with the changed country conditions when ruling on
the merits of the petitioner’s case.
Here, Sarkis presented evidence of a five-year relationship with a Jewish
woman culminating in marriage. The couple lived together for around two and a
half years before the 2006 Israeli invasion of Lebanon. Sarkis contends the
invasion resulted in an increased presence of the Islamic terrorist group Hezbollah
within Lebanon. He married the woman in 2007, the year after this asserted
change of country conditions. Sarkis claimed that returning to Lebanon would put
him, his wife, and his family in danger, given the current anti-Western and anti-
Israeli atmosphere perpetuated by Hezbollah.
We thus remand to the BIA for consideration of: (a) whether, in a situation
like Sarkis’—where his relationship with his current wife preceded a change in
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country conditions, followed the change in country conditions by marriage, and his
new spouse is from a disfavored group—it is proper to evaluate changed country
conditions as they relate to these changed personal circumstances; and if so, (b)
whether Sarkis’ case merits reopening given the changed conditions in Lebanon as
they relate to his five-year relationship and subsequent marriage to a Jewish
woman.
Sarkis’ petition for review of the BIA’s denial of his applications for asylum,
withholding of removal, and relief under the Convention Against Torture is
DENIED in part, GRANTED in part, and REMANDED to the BIA for further
proceedings. His petition for review of the BIA’s denial of his motion to reopen
removal proceedings is REMANDED as well. Each party shall bear its own costs
for this petition for review.
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