Eng Chhun v. Jeffrey Rosen

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 28, 2020
• Docket: 18-72340
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 28 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ENG CHHUN, No. 18-72340

Petitioner, Agency No. A094-833-083

v. MEMORANDUM* JEFFREY A. ROSEN, Acting Attorney General,

Respondent.

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

Submitted December 9, 2020** Pasadena, California

Before: KELLY,*** GOULD, and R. NELSON, Circuit Judges.

Petitioner Eng Chhun petitions for review of the Board of Immigration

Appeals’ (Board) denial of his motion to reopen his petition seeking deferral of

* 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 Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. removal under the Convention Against Torture (CAT). This court previously

denied review of the Board’s decision affirming the Immigration Judge’s denial of

his request for asylum and withholding of removal. Chhun v. Holder, 345 F.

App’x 297 (9th Cir. 2009).

STANDARD OF REVIEW

“We review the Board’s denial of a motion to reopen for abuse of discretion,

but review purely legal questions de novo.” Bonilla v. Lynch, 840 F.3d 575, 581

(9th Cir. 2016). The Board abuses its discretion when its denial is “arbitrary,

irrational, or contrary to law.” Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir.

2017) (quoting Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002)). We have

jurisdiction to review the Board’s denial of sua sponte reopening only where the

petitioner challenges the legal premise of the denial. Bonilla, 840 F.3d at 588.

DISCUSSION

The parties are familiar with the facts and procedural history, so we need not

restate them here. Mr. Chhun makes two arguments on appeal. First, he argues

that the Board erred by requiring him to demonstrate changed country conditions

to succeed on his motion to reopen. Second, he argues that the Board abused its

discretion in denying his motion to reopen because it was based on new evidence

and he presented a prima facie claim of entitlement to CAT protection.

A. Changed Country Conditions Requirement

2 Mr. Chhun argues that the imposition of a changed country conditions

requirement on motions to reopen CAT claims violates CAT and the Foreign

Affairs Reform and Restructuring Act of 1998 (FARRA). FARRA implements

CAT, and both prohibit removal where there are substantial grounds to believe the

removed person will be subject to torture.

In general, a motion to reopen a Board decision must be filed within 90 days

of the final administrative decision. 8 C.F.R. 1003.2(c); see also Meza-Vallejos v.

Holder, 669 F.3d 920, 924 (9th Cir. 2012). However, this time limit does not

apply to motions to reopen asylum or withholding of deportation claims “based on

changed circumstances arising in the country of nationality or in the country to

which deportation has been ordered, if such evidence is material and was not

available and could not have been discovered or presented at the previous hearing.”

8 C.F.R. § 1003.2(c)(3)(ii). Although this provision refers only to motions to

reopen asylum and withholding of deportation claims, we have held that 8 C.F.R.

§ 1003.2(c) also applies to motions to reopen CAT claims. See Agonafer, 859 F.3d

at 1203–04; Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014).

Mr. Chhun argues that the application of these limitations to motions to

reopen CAT claims violates CAT and FARRA. This argument lacks merit.

Contrary to Mr. Chhun’s contention, “the CAT is not violated by the imposition of

‘reasonable procedural requirements’ on the adjudication of a petitioner’s claims.”

3 Go, 744 F.3d at 608. We have consistently rejected the notion “that there cannot

be any ‘regulatory limitation’ on motions to reopen under the CAT” and have held

that the procedural requirements of 8 C.F.R. § 1003.2(c)(2) apply to motions to

reopen CAT claims. Go, 744 F.3d at 607–08; Agonafer, 859 F.3d at 1203–04.

Accordingly, the Board did not err in applying these requirements to Mr. Chhun’s

motion to reopen, which was filed over a decade after the final administrative

decision in his case, and the petition for review is denied as to this claim.

Mr. Chhun also argues that sua sponte reopening under 8 C.F.R. 1003.2(a) is

required whenever a petitioner makes a prima facie claim for eligibility for CAT

protection. However, the decision to reopen sua sponte is committed to the

Board’s discretion and parties’ written requests to reopen are subject to the

timeliness requirements of Section 1003.2(c), as discussed above. To the extent

that Mr. Chhun argues that the Board should have exercised its discretion to reopen

his case sua sponte despite his failure to satisfy the requirements of Section

1003.2(c), this court lacks jurisdiction over such a claim. See Bonilla, 840 F.3d at

588; see also Lona v. Barr, 958 F.3d 1225, 1232–35 (9th Cir. 2020). Accordingly,

the petition for review is dismissed as to this claim.

B. Denial of the Motion to Reopen

Mr. Chhun argues that the Board abused its discretion in denying his motion

to reopen because he presented new, material evidence establishing a prima facie

4 claim for CAT protection. As discussed above, because Mr. Chhun’s motion was

untimely, he was required to proffer evidence reflecting changed country

conditions in Cambodia affecting his eligibility for CAT protection. See Agonafer,

859 F.3d at 1203–04. The Board found that Mr. Chhun failed to do so and this

finding is supported by the record. Accordingly, the Board did not abuse its

discretion in denying Mr. Chhun’s motion to reopen as untimely and the petition

for review is denied as to this claim.

DENIED IN PART; DISMISSED IN PART.