Mohammad Tousi v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 21, 2019
• Docket: 16-71712
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 21 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MOHAMMAD TOUSI, No. 16-71712

Petitioner, Agency No. A095-443-634

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted October 17, 2019** Pasadena, California

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

Mohammad Tousi, a native of Iran and a naturalized citizen of the

Netherlands, petitions for review of a decision of the Board of Immigration Appeals

* 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 Joseph F. Bataillon, United States District Judge for the District of Nebraska, sitting by designation. (“BIA”). The BIA denied Tousi’s motion to reopen and dismissed his appeal from

the order of an Immigration Judge (“IJ”) denying asylum, withholding of removal,

and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252(a)(1) and deny the petition.

1. Tousi was not denied due process in the proceedings before the IJ. See

Oshodi v. Holder, 729 F.3d 883, 889 (9th Cir. 2013) (en banc) (noting that the Fifth

Amendment guarantees a “full and fair hearing” in deportation proceedings). He

testified in detail over several days about the events that served as the foundation of

his claims for relief, presented documents in support of his claims, and responded to

repeated clarifying questions from the IJ. See id. (“A vital hallmark of a full and fair

hearing is the opportunity to present evidence and testimony on one’s behalf.”). We

lack jurisdiction to address Tousi’s claims that the IJ did not allow him to present a

priest as a witness and did not give him an opportunity to discuss how he helped the

government because they were not presented below. See Barron v. Ashcroft, 358

F.3d 674, 678 (9th Cir. 2004).

2. A motion to reopen “shall not be granted unless it appears to the Board

that evidence sought to be offered is material and was not available and could not

have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

The BIA did not abuse its discretion in denying Tousi’s motion to reopen for

ineffective assistance of counsel. See Mohammed v. Gonzales, 400 F.3d 785, 791

2 (9th Cir. 2005) (noting standard of review). Tousi failed to explain why he neither

raised this argument in his 2010 direct appeal to the BIA nor complied with the

requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). The BIA

also did not abuse its discretion by denying Tousi’s motion to reopen based on new

evidence. Tousi’s motion only claimed that one of the four purportedly new pieces

of evidence was unavailable previously. And, Tousi never explained how this

evidence was material to his claim that Iranian spies in the Netherlands were

targeting him.

3. The IJ erred in determining that she could not receive additional

evidence during the remand proceedings, see Fernandes v. Holder, 619 F.3d 1069,

1074 (9th Cir. 2010), but this error was harmless, because the BIA considered the

additional evidence proffered by Tousi and correctly found that it did not support

reopening, see Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998) (“Any error

committed by the IJ thus may be rendered harmless by the BIA’s application of the

correct legal standard.”) (internal quotation marks and citations omitted). The BIA

did not thereby engage in improper factfinding, as it was required to make that

determination. See 8 C.F.R. § 1003.2(c)(1).

PETITION FOR REVIEW DENIED.