NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALI BEN MOHAMED HENDAOUI, No. 19-72873
Petitioner, Agency No. A077-976-595
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 6, 2021**
Pasadena, California
Before: D.M. FISHER,*** WATFORD, and BUMATAY, Circuit Judges.
Ali Hendaoui, a native and citizen of Tunisia, petitions for review of the Board
of Immigration Appeals’ (BIA’s) denial of his motion to reopen his immigration
*
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. See Fed. R. App. P. 34(a)(2).
***
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
proceedings after he was ordered to be removed. We have jurisdiction under 8 U.S.C.
§ 1252(a)(1) and 28 U.S.C. § 2342. We deny the petition.
We review the BIA’s denial of a motion to reopen for abuse of discretion, its
legal determinations de novo, and its factual findings for substantial evidence.
Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009) (citation omitted).
1. The Immigration Judge and BIA had jurisdiction over Hendaoui’s case.
Contrary to Hendaoui’s argument, that fact is not changed by Pereira v. Sessions,
138 S. Ct. 2105 (2018), or Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). Pereira
and Niz-Chavez deal solely with the stop-time rule of 8 U.S.C. § 1229b(d)(1) and
the notice to appear requirements of 8 U.S.C. § 1229(a). Karingithi v. Whitaker, 913
F.3d 1158, 1161 (9th Cir. 2019); Niz-Chavez, 141 S. Ct. at 1479. The stop-time rule
is not at issue here. And, as we explained in Karingithi, the Immigration Court’s
jurisdiction is not controlled by § 1229(a), but by immigration regulations. 913 F.3d
at 1158-59 (citing 8 C.F.R. §§ 1003.13, 1003.14, 1003.15). Under the jurisdictional
regulations, a notice to appear like the one Hendaoui received—which says the date
and time of the hearing are “To Be Set”—vests jurisdiction in the Immigration Court.
Id. at 1159-60.
2. Hendaoui challenges the BIA’s denial of his motion to reopen based on
changed country conditions in Tunisia. An alien may exceed the normal time and
number limitations for motions to reopen (one motion within ninety days) if he seeks
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to reopen based on changed country conditions. 8 C.F.R. § 1003.2(c)(3)(ii). The
motion must be supported by evidence showing “a reasonable likelihood that the
statutory requirements for [asylum or withholding] have been satisfied.” Salim v.
Lynch, 831 F.3d 1133, 1139 (9th Cir. 2016) (internal quotation marks omitted).
The BIA reasonably determined that even if atheists are persecuted in Tunisia,
Hendaoui did not show that he is an activist who would be targeted. The only
evidence of Hendaoui’s activism was printouts from his Facebook account showing
that he made two statements critical of or indifferent toward religion, and that he
“liked” and “followed” a group called “Atheists United.” The BIA credited
Hendaoui’s testimony that he had received online death threats—but because the
threats were not in evidence, it could not determine their frequency and seriousness.
Therefore, Hendaoui did not adequately link his evidence of conditions in Tunisia
to his own “particular circumstances”; rather, he showed only a “general,
undifferentiated claim based solely on the threat to the group.” Najmabadi v.
Holder, 597 F.3d 983, 992 (9th Cir. 2010) (internal quotation marks and citation
omitted). That does not entitle him to relief. Id.
Hendaoui argues that because the BIA did not make “an explicit adverse
credibility finding, we must assume that [his] factual contentions are true.” Kataria
v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000). However, the Supreme Court has
abrogated that rule. Garland v. Dai, 141 S. Ct. 1669, 1676-77 (2021). In any event,
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the BIA did assume that his testimony was true—and ruled against him anyway, in
a reasoned opinion supported by substantial evidence.
The BIA must give “reasoned consideration” to “highly probative or
potentially dispositive evidence.” Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011).
Expert conclusions are not dispositive, however, if they are undermined by other
aspects of the record. See Zheng v. Holder, 644 F.3d 829, 836 (9th Cir. 2011). Here,
the BIA considered and cited to the expert’s report. The BIA reasonably declined to
accept the expert’s opinion that Hendaoui may be persecuted, tortured, or killed,
because that opinion does not comport with the expert’s own description of country
conditions, news articles, or the State Department’s Religious Freedom Report.
3. Hendaoui argues that the BIA abused its discretion in denying his motion
to reopen based on the ineffective assistance of counsel. If Hendaoui could meet the
test for ineffective assistance of counsel, we would remand and the agency would
reopen the proceedings to consider his request for asylum, withholding, and
protection under the Convention Against Torture. See Ray v. Gonzales, 439 F.3d
582, 592 (9th Cir. 2006). But the BIA held (in the course of ruling on Hendaoui’s
changed-country-conditions claim, prepared by his new counsel) that he did not
make out a prima facie case for these forms of relief.
In his motion to reopen, Hendaoui was required to “state the new facts that
will be proven at a hearing . . . if the motion is granted” and support the facts with
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“affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). Therefore, the
case for relief that Hendaoui would make on remand is contained in his moving
papers, which the BIA has already considered. If we were to remand, “neither the
result nor the BIA’s basic reasoning would change.” Singh v. Barr, 935 F.3d 822,
827 (9th Cir. 2019). We do not remand if doing so “would be an idle and useless
formality,” because we do not wish to “convert judicial review of agency action into
a ping-pong game.” Id. (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766
n.6 (1969)). Therefore, Hendaoui’s ineffective assistance argument fails.
DENIED.
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