Nicoline Mbi v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 15, 2022
• Docket: 20-73755
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NICOLINE AKO MBI, No. 20-73755

Petitioner, Agency No. A095-308-333

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 8, 2022** Portland, Oregon

Before: SCHROEDER and SUNG, Circuit Judges, and ANTOON,*** District Judge.

Nicoline Ako Mbi, a Cameroonian asylum-seeker, petitions for review of a

Board of Immigration Appeals (BIA) decision denying her second motion to

* 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 John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. reopen her removal proceedings. The BIA held that (1) Mbi’s motion was untimely

and number-barred, and that (2) regardless, she had not shown that the new

evidence she seeks to present would change the result in her reopened case. We

have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s denial of a motion

to reopen for abuse of discretion. Sanchez Rosales v. Barr, 980 F.3d 716, 719 (9th

Cir. 2020). Because the BIA did not abuse its discretion in finding insufficiently

changed country conditions to excuse the time and numerical bars, we affirm.

Because this is Mbi’s second motion to reopen, filed years after her 2004

case before the Immigration Judge, her motion is barred, 8 U.S.C. §

1229a(c)(7)(A), (C)(i), unless she shows changed country conditions, 8 C.F.R. §

1003.2(c)(3)(ii). See also Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010).

New evidence of changed country conditions must show a qualitative

change in the level or nature of persecution on the basis of the petitioner’s current

basis for relief, comparing the country conditions at the time of the motion to

reopen with those at the time of the prior hearing. Salim v. Lynch, 831 F.3d 1133,

1137-39 (9th Cir. 2016). Both Mbi’s new and original country conditions evidence

indicates that the Cameroonian government has persecuted Anglophone

Cameroonians who oppose the government. The evidence specifically cited by Mbi

establishes that there is greater unrest by Anglophone separatist groups, but it does

not establish that the level of persecution has worsened. Thus, the BIA did not

2 abuse its discretion in finding that the new evidence establishes only that the

conditions in Cameroon have continued but have not materially changed.1

The petition is DENIED.

1 To the extent Mbi contends she has shown changed country conditions because she presents a new asylum claim based on social group, as opposed to her original claim based on political opinion, that contention fails for two reasons. First, the bases for Mbi’s two asylum claims (the social group of “Anglophones known by the Cameroonian government to be opposed to president Paul Biya” and the political opinion of opposing the Francophone Paul Biya government) are essentially the same. Second, even when a petitioner presents a materially different basis for asylum in a successive or time-barred motion to reopen, the petitioner must establish that the changed country conditions exception applies. See, e.g., Salim, 831 F.3d at 1137-39.