Soliman v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 2024
• Docket: 21-926
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MINA SABER LABIB SOLIMAN, No. 21-926 Agency No. Petitioner, A216-553-900 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted March 6, 2024 Pasadena, California

Before: CLIFTON, H.A. THOMAS, and DESAI, Circuit Judges.

Mina Saber Labib Soliman is a citizen of Egypt. He petitions for review of a

decision of the Board of Immigration Appeals (“BIA”) denying his motion to

reopen proceedings to seek asylum and withholding of removal based on changed

circumstances in Egypt. We have jurisdiction under 8 U.S.C. § 1252. We review

the BIA’s denial of a motion to reopen for abuse of discretion, and we defer to the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. BIA’s exercise of discretion unless it acts arbitrarily, irrationally, or contrary to

law. Reyes-Corado v. Garland, 76 F.4th 1256, 1259 (9th Cir. 2023). We deny the

petition.

1. To prevail on a motion to reopen on the basis of changed country

conditions, a petitioner must: “(1) produce evidence that conditions have changed

in the country of removal; (2) demonstrate that the evidence is material; (3) show

that the evidence was not available and would not have been discovered or

presented at the previous hearings; and (4) ‘demonstrate that the new evidence,

when considered together with the evidence presented at the original hearing,

would establish prima facie eligibility for the relief sought.’” Agonafer v. Sessions,

859 F.3d 1198, 1204 (9th Cir. 2017) (quoting Toufighi v. Mukasey, 538 F.3d 988,

996 (9th Cir. 2008)). The new evidence must be “qualitatively different” from the

evidence presented at the previous hearing. Malty v. Ashcroft, 381 F.3d 942, 945

(9th Cir. 2004).

Here, the BIA did not abuse its discretion in denying Soliman’s motion to

reopen. As the BIA noted, the evidence that Soliman submitted in support of his

motion to reopen, including both country condition reports and evidence of an

attack on his mother and nieces, merely “reflects a continuation of an unfortunate

longstanding problem of religious discrimination and violence in Egypt, not a

material change.” The 2020 annual report of the U.S. Commission on International

2 21-926 Religious Freedom stated that “religious freedom conditions in Egypt continued to

trend tentatively in a positive direction” in 2019. The 2021 annual report described

conditions as “largely static” in 2020. Because Soliman’s evidence “simply

recounts previous conditions presented at [his] previous hearing,” it is insufficient

to show a change in country conditions.1 Agonafer, 859 F.3d at 1204.

Soliman also argues that “[t]he BIA’s decision to summarily state that it

considered the evidence, followed by citing a large range of exhibits, . . . is not

sufficient.” But “we apply a presumption that the BIA did review the record,” and

the BIA need not expressly discuss “evidence that is neither highly probative nor

potentially dispositive.” Hernandez v. Garland, 52 F.4th 757, 771 (9th Cir. 2022)

(cleaned up). The BIA is also not required to “individually identify and discuss

every piece of evidence in the record.” Id. at 770. As such, Soliman has not shown

that the BIA failed to consider the evidence.

2. For the first time on appeal, Soliman argues that his deadline to file a

motion to reopen should be equitably tolled. Soliman did not raise this issue before

the BIA and has therefore failed to exhaust it. See Santos-Zacaria v. Garland, 598

U.S. 411, 423 (2023) (holding that, although 8 U.S.C. § 1252(d)(1)’s exhaustion

1 Soliman also argues that the BIA erred by failing to reach the issue of whether he established prima facie eligibility for relief. The BIA, however, can deny a motion to reopen based solely on a petitioner’s failure to introduce previously unavailable, material evidence. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010).

3 21-926 requirement is not jurisdictional, it is still subject to the rules regarding waiver and

forfeiture); Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) (finding

exhaustion requirement mandatory when a party timely urges the court to apply it

and declining to consider an issue that the petitioner failed to exhaust before the

BIA).

PETITION DENIED.

4 21-926