Mirtabatabaie v. Gonzales

234 F. App'x 596

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2007
• Docket: Nos. 04-72043, 04-74276
• Status: Published

Opinion

MEMORANDUM

**

Seied Mostafa Mirtabatabaie petitions for review of the Board of Immigration Appeals’ (BIA’s) denial of his motions to reopen and reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition. We review for abuse of discretion. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005).

Petitioner did not challenge the Immigration Judge’s (IJ) adverse credibility finding before the BIA. Accordingly, we will not consider that issue now. Rodas-Mendoza v. INS, 246 F.3d 1237, 1240 (9th Cir.2001) (per curiam) (holding that failure to raise issue before administrative body amounts to waiver). With the adverse credibility decision intact, Petitioner cannot establish eligibility for asylum, see 8 C.F.R. § 208.13(a) (burden of proof for asylum claims), or for relief under the Convention Against Torture (CAT). See Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir.2006) (affirming where only the discredited testimony of the petitioner and general country conditions reports supported his claim under CAT). Thus, this case is distinguished from Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.2001).

The BIA did not abuse its discretion when it denied Petitioner’s second motion based on the belatedly-presented argument that he did not receive the first BIA decision. Petitioner did not satisfy his obligation of notifying the BIA of his change of address, though he was repeatedly informed that he must do so. See Sequeirara-Solano v. INS, 104 F.3d 278, 279 (9th Cir.1997). Thus, the BIA did not abuse its discretion when it attributed the alleged failure of delivery to Petitioner.

PETITION DENIED.

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