FILED
NOT FOR PUBLICATION MAR 30 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FAIZUN FARNAZ ALI, Nos. 05-70814
07-72495
Petitioner,
Agency No. A095-583-190
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2011 **
Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.
In these consolidated petitions, Faizun Farnaz Ali, a native and citizen of
Fiji, petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing her appeal from an immigration judge’s (“IJ”) decision denying her
application for asylum, withholding of removal, and protection under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (“CAT”) (No. 05-70814), and the BIA’s denial of her
motion to reopen (No. 07-72495). Our jurisdiction is governed by 8 U.S.C. §
1252. We review for substantial evidence findings of fact, Nagoulko v. INS, 333
F.3d 1012, 1015 (9th Cir. 2003), and for abuse of discretion the denial of a motion
to reopen, Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004). In No. 05-70814,
we deny in part and dismiss in part the petition for review. In No. 07-72495, we
deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s conclusion that Ali’s experiences
in Fiji, including harassment and witnessing a robbery, did not rise to the level of
persecution. See Halim v. Holder, 590 F.3d 971, 975-76 (9th Cir. 2009).
Substantial evidence also supports the agency’s finding that Ali failed to
demonstrate a well-founded fear of future persecution. See Molina-Estrada v. INS,
293 F.3d 1089, 1096 (9th Cir. 2002) (when a petitioner has not established past
persecution, the agency may “rely on all relevant evidence in the record, including
a State Department report, in considering whether the petitioner has demonstrated
that there is good reason to fear future persecution.”). Accordingly, Ali’s asylum
claim fails.
2 05-70814
Because Ali failed to establish eligibility for asylum, she necessarily failed
to meet the more stringent standard for withholding of removal. See Zehatye v.
Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
We lack jurisdiction to review Ali’s CAT claim because it was not exhausted
before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
Finally, the BIA did not abuse its discretion in denying Ali’s motion to
reopen because it was untimely, see 8 C.F.R. § 1003.2(c)(2), Ali failed to
demonstrate changed country conditions to qualify for the regulatory exception to
the time limit, see 8 C.F.R. § 1003.2(c)(3)(ii), and Ali did not show prima facie
eligibility for the relief sought, see INS v. Abudu, 485 U.S. 94, 104-05 (1988) (the
BIA may deny a motion to reopen for failure to establish a prima facie case for the
underlying relief sought); see also Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.
2002) (the BIA’s denial of a motion to reopen shall be reversed only if it is
arbitrary, irrational, or contrary to the law).
We lack jurisdiction to review the BIA’s decision not to invoke its sua
sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v.
INS, 303 F.3d 1153, 1159 (9th Cir. 2002). If we had jurisdiction to review the
BIA’s decision, we would find no abuse of discretion.
3 05-70814
No. 05-70814: PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
No. 07-72495: PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
4 05-70814