Bijan Prasad v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 8, 2020
• Docket: 08-72706
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BIJAN PRASAD; MANJULA DEVI No. 08-72706 PRASAD; AMIT AVINASH PRASAD; AVIKASH AVINASH PRASAD, Agency Nos. A073-419-397 A073-419-398 Petitioners, A073-419-399 A073-419-400 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

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

Submitted June 4, 2020** Anchorage, Alaska

Before: CHRISTEN, WATFORD, and BADE, Circuit Judges.

Petitioner Bijan Prasad, his wife Manjula Prasad, and their two children,

who are natives and citizens of Fiji of Indian descent, petition for review of the

Board of Immigration Appeals’ (“BIA’s”) denial of their motion to reopen

* 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). asserting changed country conditions based on a May 2000 military coup. We

deny the petition for review.

Petitioners claim they were persecuted in Fiji because of their Indo-Fijian

ethnicity. Petitioners asserted that on two separate occasions Manjula was

assaulted by ethnic Fijians when she was working at the family-owned store. A

group of landowners attacked Prasad and his brother at the brother’s business when

they refused to pay the landowners additional money for using their land. In

addition, ethnic Fijians attacked and stole money from Bijan’s and Manjula’s

children. And ethnic Fijians burned Petitioners’ Hindu temple, destroyed their

religious decorations, and vandalized their car. An immigration judge (“IJ”)

credited Bijan’s and Manjula’s testimony but denied their applications, reasoning

that none of the incidents rose to the level of persecution based upon a protected

ground. The BIA affirmed.

The BIA subsequently granted Petitioners’ motion to reopen under the

regulations implementing the Convention Against Torture (“CAT”) and remanded

to the IJ to provide Petitioners the opportunity to apply for protection under CAT.

During the remanded proceeding, Petitioners requested to reopen to reapply for

asylum and withholding based on a May 2000 “racial coup” led by George

Speight. Petitioners did not file a written motion to reopen, but they submitted the

Department of State’s Country Report on Human Rights Practices-2000, and the

2 government submitted the 2002 report. The IJ denied the request to reopen as

outside the scope of the remand. The IJ also noted that the leader of the 2000 coup

and several of his followers had been arrested and sentenced. The BIA denied

review, agreeing that the motion to reopen was beyond the scope of the remand

and that Petitioners had not shown that the 2000 coup was materially related to

their claim of future persecution. Petitioners petitioned this court for review.

While the petition for review was pending in this court, the BIA issued

Matter of M-D-, holding that “when a case is remanded to an [IJ] for the

appropriate background checks pursuant to 8 C.F.R. § 1003.47(h), the [IJ]

reacquires jurisdiction over the proceedings.” 24 I. & N. Dec. 138, 141 (B.I.A.

2007). On remand, the IJ may “consider new evidence if it would support a

motion to reopen the proceedings.” Id. at 142. We granted Respondent’s motion

to remand to the BIA to consider Matter of M-D-.

On remand, the BIA concluded that, under Matter of M-D-, the IJ erred in

determining that the immigration court lacked jurisdiction over Petitioners’ motion

to reopen but the BIA did not remand to the IJ. Instead the BIA dismissed the

appeal, noting that the IJ had considered the 2002 country report and properly

denied the motion to reopen because Petitioners had cited no evidence in the

materials before the IJ that was particular to their claim of persecution.

We conclude the BIA did not violate Matter of M-D- when it did not remand

3 to the IJ. Unlike that case, no applicable regulations here required the BIA to

remand to the IJ to conduct further proceedings. Id. at 142 (finding remand

necessary because the IJ had not entered a final order granting or denying

withholding and the applicable regulations required the IJ to do so) (citing 8

C.F.R. § 1003.47(h)). Additionally, the BIA applied the proper legal standard to

Petitioners’ motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii) (criteria for an

untimely motion to reopen).

We also conclude that the BIA did not violate its own regulations,

Petitioners’ statutory rights, see 8 U.S.C. § 1229a(b)(4)(B), or constitutional due

process rights when it did not remand to the IJ. On remand from this court, the

BIA did not grant the motion to reopen and, thus, further proceedings were not

necessary. 8 C.F.R. § 1003.2(i). Additionally, the BIA did not engage in fact

finding and, thus, did not violate 8 C.F.R. § 1003.1(d)(3)(iv). Further, Petitioners

were afforded a full and fair opportunity to present their case and evidence. See

Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir. 2006) (“The BIA’s

decision will be reversed on due process grounds if (1) the proceeding was ‘so

fundamentally unfair that the alien was prevented from reasonably presenting his

case,’ and (2) the alien demonstrates prejudice, ‘which means that the outcome of

the proceeding may have been affected by the alleged violation.’” (citation

omitted) (quoting Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000))). The IJ

4 granted Petitioners ample time to file a written motion to reopen and they failed to

do so. The agency considered the only evidence that Petitioners submitted to

establish changed circumstances.

We also conclude the BIA did not abuse its discretion by denying the motion

to reopen that was based on the 2000 coup. See Feng Gui Lin v. Holder, 588 F.3d

981, 984 (9th Cir. 2009). Although Fiji underwent a coup in 2000, we agree with

the BIA that the Petitioners did not identify any evidence in the materials before

the IJ indicating that Indo-Fijians had been persecuted on account of their ethnicity

after the ouster of the leader of the coup. See Najmabadi v. Holder, 597 F.3d 983,

992 (9th Cir. 2010) (noting petitioner seeking to reopen based on changes in

country conditions must “provide evidence linked to her particular

circumstances”).

PETITION FOR REVIEW DENIED.