Dawit v. Mukasey

Ninth Circuit

Dawit v. Mukasey

269 F. App'x 737

Court of Appeals for the Ninth Circuit·Decided March 12, 2008·No. Nos. 06-72458, 06-74589·Published

Opinion

MEMORANDUM

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In these consolidated petitions, Gebriel Dawit, a native and citizen of Ethiopia, seeks review of the Board of Immigration Appeals’ (“BIA”) order adopting and af[738]*738firming the Immigration Judge’s (“IJ”) order denying his application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”) and the BIA’s order denying his motion to reopen his removal proceedings and to reconsider its previous order. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial evidence and will uphold the agency’s decision unless the evidence compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We review the denial of a motion to reopen or to reconsider for an abuse of discretion. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We deny the petitions for review.

Substantial evidence supports the agency’s adverse credibility determination based on the material inconsistencies between Dawit’s testimony and his affidavit. See Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004). As the record does not compel the conclusion that Dawit’s testimony was credible, he has not established eligibility for asylum, withholding of removal, or relief under CAT. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

The BIA did not abuse its discretion in refusing to reopen Dawit’s proceedings on the grounds that the psychological and medical evidence Dawit attached to his motion could have been discovered prior to his hearing, see 8 C.F.R. § 1003.2(c)(1); see also Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir.2007) (holding that if evidence was capable of being discovered prior to the hearing, it cannot serve as the basis for a motion to reopen), and that, in light of the adverse credibility finding, the evidence of changed country conditions in Ethiopia was insufficient to establish a prima facie case for relief, see Toufighi v. Mukasey, 510 F.3d 1059, 1066-67 (9th Cir. 2007).

To the extent Dawit was seeking reconsideration, his motion was untimely. See 8 C.F.R. § 1003.2(b)(2).

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM

**

In these consolidated petitions, Gebriel Dawit, a native and citizen of Ethiopia, seeks review of the Board of Immigration Appeals’ (“BIA”) order adopting and af[738]*738firming the Immigration Judge’s (“IJ”) order denying his application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”) and the BIA’s order denying his motion to reopen his removal proceedings and to reconsider its previous order. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial evidence and will uphold the agency’s decision unless the evidence compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We review the denial of a motion to reopen or to reconsider for an abuse of discretion. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We deny the petitions for review.

Substantial evidence supports the agency’s adverse credibility determination based on the material inconsistencies between Dawit’s testimony and his affidavit. See Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004). As the record does not compel the conclusion that Dawit’s testimony was credible, he has not established eligibility for asylum, withholding of removal, or relief under CAT. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

The BIA did not abuse its discretion in refusing to reopen Dawit’s proceedings on the grounds that the psychological and medical evidence Dawit attached to his motion could have been discovered prior to his hearing, see 8 C.F.R. § 1003.2(c)(1); see also Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir.2007) (holding that if evidence was capable of being discovered prior to the hearing, it cannot serve as the basis for a motion to reopen), and that, in light of the adverse credibility finding, the evidence of changed country conditions in Ethiopia was insufficient to establish a prima facie case for relief, see Toufighi v. Mukasey, 510 F.3d 1059, 1066-67 (9th Cir. 2007).

To the extent Dawit was seeking reconsideration, his motion was untimely. See 8 C.F.R. § 1003.2(b)(2).

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Dawit v. Mukasey, 269 F. App'x 737 (9th Cir. 2008).

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