Case: 13-60208 Document: 00512531910 Page: 1 Date Filed: 02/13/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60208 February 13, 2014
Summary Calendar
Lyle W. Cayce
Clerk
RANA MUHAMMED SALEEM, also known as Saleem Khan,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A073 758 905
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Rana Muhammed Saleem, a native and citizen of Pakistan, was ordered
removed in absentia in September 1995. He now petitions for review of the
Board of Immigration Appeals’ (BIA) denial of his second motion to reopen,
filed in October 2012. Saleem contends he follows the Ahmadi religion and
changed conditions in Pakistan regarding the persecution of Ahmadis entitle
him to reopen his removal proceeding.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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We review the denial of a motion to reopen under “a highly deferential
abuse-of-discretion standard”. Gomez-Palacios v. Holder, 560 F.3d 354, 358
(5th Cir. 2009). This court may not overturn the BIA’s factual findings unless
the evidence compels a contrary conclusion. Id. The BIA’s denial of a motion
to reopen will be affirmed if the denial is “not capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so aberrational that it
is arbitrary rather than the result of any perceptible rational approach”.
Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir. 2007) (citation and
internal quotation marks omitted).
An alien may file one motion to reopen within 90 days of the date on
which the final administrative order is entered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8
C.F.R. § 1003.2(c)(2). A motion to reopen is not barred, however, if the alien’s
request for relief “is based on changed country conditions arising in the country
of nationality or the country to which removal has been ordered, if such
evidence is material and was not available and would not have been discovered
or presented at the previous proceeding”. 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
8 C.F.R. § 1003.2(c)(3)(ii). To determine whether there has been a material
change in country conditions, the evidence of such conditions submitted with
the motion is compared to those existing at the time the deportation order was
issued. See, e.g., Panjwani v. Gonzales, 401 F.3d 626, 633 (5th Cir. 2005). An
alien must also show prima facie eligibility for relief from removal. Yuan Qing
Yu v. Holder, 423 F. App’x 413, 414 (5th Cir. 2011) (citing INS v. Abudu, 485
U.S. 94, 104 (1988)).
Saleem asserts the evidence filed in support of his motion to reopen
showed the persecution of Ahmadis in Pakistan has worsened since his 1995
deportation proceeding. He also contends the district court erred in finding he
did not demonstrate prima facie eligibility for asylum. (To the extent Saleem’s
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No. 13-60208
second motion to reopen raised claims for withholding of removal and relief
under the Convention Against Torture, they have been abandoned, because
Saleem did not raise them in his petition for review in this court. See Soadjede
v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).)
Regarding claimed changed country conditions to support eligibility for
asylum, Saleem testified he suffered several beatings from “early 1990” to 1995
for being an Ahmadi sympathizer, was severely beaten and threatened with
death in 1995 by radical Muslim clerics, and was then turned over to the police
who, “instead of providing protection”, threatened him with prosecution for
violating Islamic laws. Based on that testimony, the BIA did not abuse its
discretion by ruling that evidence did not establish a material change in
country conditions between 1995 and the time of his second motion to reopen.
Although the materials Saleem presented with his motion to reopen suggest
an intensification of persecution in 2011 and 2012, the materials do not identify
the specific time frame being contrasted or otherwise compare the conditions
during 1995 and the time of his motion to reopen. Accordingly, the materials
do not show a material change in the treatment of Ahmadis in Pakistan. See,
e.g., Himani v. Mukasey, 305 F. App’x 229, 231 (5th Cir. 2008) (finding “simply
a continuation of the Pakistani government’s suppression of non-government
supporters” insufficient to show changed country conditions). In addition,
Saleem’s decision to become an Ahmadi after his arrival in the United States
reflects a change in personal circumstances rather than a change in country
conditions and does not exempt his motion to reopen from the applicable time
bar. See Zhao v. Gonzales, 440 F.3d 405, 407 (5th Cir. 2005).
Because the BIA did not abuse its discretion by ruling Saleem failed to
establish changed country conditions, we need not consider whether he
established prima facie eligibility for asylum. E.g., Yu Chun Lian v. Mukasey,
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294 F. App’x 163, 164 (5th Cir. 2008) (citing INS v. Orlando Ventura, 537 U.S.
12, 16-17 (2002)).
DENIED.
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