F.A. v. Eric Holder, Jr.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 20 2014

MOLLY C. DWYER, CLERK
F.A., No. 10-72448 U.S. COURT OF APPEALS

Petitioner, Agency No. A077-009-091

v.
MEMORANDUM*
ERIC H. HOLDER JR., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted March 6, 2014**
Pasadena, California

Before: FERNANDEZ, GRABER, and MURGUIA, Circuit Judges.

Petitioner F.A., a native and citizen of Jordan, petitions for review of an

order issued by the Board of Immigration Appeals ("BIA") denying as untimely his

motion to reopen deportation proceedings. We previously denied Petitioner’s

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 Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Convention Against Torture ("CAT"), in which Petitioner alleged persecution

because of his involvement in the Jordanian peace movement. On November 3,

2009, Petitioner untimely moved to reopen, arguing changed country conditions

with respect to him because his family in Jordan had learned that he was in a

homosexual relationship in the United States. Reviewing for abuse of discretion

the BIA’s denial of a motion to reopen, He v. Gonzales, 501 F.3d 1128, 1130 (9th

Cir. 2007), we deny the petition for review.

The BIA did not abuse its discretion in holding that Petitioner failed to

establish "prima facie eligibility for the relief sought [in his] . . . motion to reopen."

Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869–70 (9th Cir. 2003). The BIA

permissibly took judicial notice, 8 C.F.R. § 1003.1(d)(3)(iv), of the 2009 U.S. State

Department Report on Jordan, which stated that homosexuality was not illegal in

Jordan, contrary to Petitioner’s arguments and the country condition information

that he provided, which dated from 1995 to 2004. The BIA permissibly concluded

that the State Department Report showed, at most, societal discrimination against

homosexuals and that Petitioner failed to show practices amounting to persecution

of homosexuals or to torture with the acquiescence of the government. See

Wakkary v. Holder, 558 F.3d 1049, 1061 (9th Cir. 2009) (persecution by private

individuals is grounds for relief only when it is "sufficiently widespread and the

2
government is unable or unwilling to control those actors"); Bromfield v.

Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008) (government acquiescence to

torture is necessary to sustain a CAT claim).1

The BIA therefore did not abuse its discretion in holding that Petitioner

failed to meet his "heavy burden" to show cause for a motion to reopen. INS v.

Doherty, 502 U.S. 314, 323 (1992); INS v. Abudu, 485 U.S. 94, 109–10 (1988).

DENIED.

1
Petitioner has waived any argument that the BIA failed to give him an
opportunity to respond to the 2009 State Department report.