Loay Alaskcr v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 23, 2021
• Docket: 20-71213
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LOAY HERIZ SHAMUON ALASKCR, No. 20-71213 AKA Loay Hermiz Shamoun Alaskar, Agency No. A206-267-435 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 19, 2021** Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and BOUGH,*** District Judge.

* 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 Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. Loay Heriz Shamuon Alaskcr, a native and citizen of Iraq, petitions for review

of a decision of the Board of Immigration Appeals (“BIA”) dismissing an appeal

from the order of an Immigration Judge (“IJ”) denying a motion to reopen. We

review for abuse of discretion, see INS v. Doherty, 502 U.S. 314, 323–24 (1992),

and will not disturb the BIA’s decision unless it is “arbitrary, irrational or contrary

to law,” Valeriano v. Gonzales, 474 F.3d 669, 672 (9th Cir. 2007) (citation omitted).

We deny the petition for review.

Because Alaskcr filed his motion to reopen more than 90 days after the final

administrative decision of removal, it was untimely. 8 U.S.C. § 1229a(c)(7)(C)(i).

Untimeliness may be excused if “circumstances have changed sufficiently that a

petitioner who previously did not have a legitimate claim for asylum now has a well-

founded fear of future persecution.” See Malty v. Ashcroft, 381 F.3d 942, 945 (9th

Cir. 2004).

Alaskcr argues that the rise of ISIS from 2014 to 2016 increased the likelihood

of persecution of Chaldean Christians and those returning to Iraq from the United

States. The IJ concluded, however, “[t]here has been sectarian violence in Iraq for

many years . . . [and] [r]espondent has not shown that conditions have materially

worsened since his removal hearing was completed in 2016,” and that “if anything,

2 the evidence in this case shows a decrease in the level of violence in Iraq.”1 The IJ

also found that the “evidence shows that Iraqis with ties to the U.S. have faced

difficulties upon returning to Iraq for more than a decade, since at least 2007,” and

that individuals returning to Iraq with ties to the United States do not face a

likelihood of being tortured. The record supports the IJ’s conclusions, and the

agency therefore did not abuse its discretion in finding that Alaskcr did not establish

materially changed country conditions in Iraq for Chaldean Christians.2

PETITION FOR REVIEW DENIED.

1 Alaskcr does not challenge in this Court the IJ’s use of 2016 as the starting date for gauging the purported change in conditions. 2 Alaskcr argued for the first time on appeal to the BIA that the resumption of removals to Iraq was a material change in circumstances warranting reopening. See Hamama v. Adduci, 912 F.3d 869, 872 (6th Cir. 2018). The BIA did not abuse its discretion by finding that Alaskcr failed to establish how recent deportations to Iraq increased his risk of persecution and torture.