Tajaddin Aliyev v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 24, 2020
• Docket: 19-72701
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT AUG 24 2020 TAJADDIN RAFAIL ALIYEV, Nos. 07-70128 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS 15-72338 Petitioner, 19-72701

v. Agency No. A098-516-120

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

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

Submitted August 17, 2020** San Francisco, California

Before: GRABER, TALLMAN, and CLIFTON, Circuit Judges.

Petitioner Tajaddin Aliyev seeks review of three final decisions of the Board

of Immigration Appeals ("BIA"). We uphold findings of fact unless the evidence

compels a contrary conclusion. Guo v. Sessions, 897 F.3d 1208, 1212 (9th Cir.

2018). We review for abuse of discretion the BIA’s denial of a motion to reopen.

* 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). Flores v. Barr, 930 F.3d 1082, 1087 (9th Cir. 2019) (per curiam).

A. Petition No. 07-70128

1. Substantial evidence supports the BIA’s determination that Petitioner did

not suffer past persecution. Reasonable minds could differ as to whether the

threats that Petitioner received constituted persecution, so the record does not

compel the conclusion that he suffered persecution. Duran-Rodriguez v. Barr, 918

F.3d 1025, 1028–29 (9th Cir. 2019).

Substantial evidence also supports the BIA’s determination that Petitioner

did not have a well-founded fear of future persecution, because he failed to prove

that relocation to another part of Azerbaijan "would not be possible or reasonable."

Id. at 1029. Petitioner’s family safely relocated, and the people who previously

threatened Petitioner have not sought him or his family in their new home.

Cf. Khup v. Ashcroft, 376 F.3d 898, 905 (9th Cir. 2004) (noting that the

petitioner’s testimony did not address "whether the military had questioned his

family about his whereabouts"). Additionally, substantial evidence supports the

BIA’s conclusion that Petitioner failed to demonstrate the existence of a nexus

between any threats or actions against him and his political opinions or claimed

status as a whistleblower. Ochave v. INS, 254 F.3d 859, 865–66 (9th Cir. 2001).

Because Petitioner did not suffer past persecution or demonstrate a well-founded

2 fear of future persecution on account of a protected ground, his claim for asylum

fails. Hanna v. Keisler, 506 F.3d 933, 939 (9th Cir. 2007).

2. Substantial evidence supports the agency’s denial of CAT protection.

Petitioner did not meet his burden to show that he would "more likely than not" be

tortured "by or with the acquiescence of a government official or other person

acting in an official capacity" if he were removed to Azerbaijan. Tamang v.

Holder, 598 F.3d 1083, 1095 (9th Cir. 2010). "[G]eneralized evidence" of cruel

conditions in Azerbaijani prisons does not satisfy the standard for CAT protection.

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam).

B. Petition No. 15-72338

1. The BIA did not abuse its discretion by denying Petitioner’s first motion

to reopen, which he conceded was untimely and did not qualify for any exceptions

to the filing requirements. 8 C.F.R. § 1003.2(c)(2).

2. We lack jurisdiction to review the BIA’s denial of Petitioner’s motion to

reopen sua sponte. Mejia-Hernandez v. Holder, 633 F.3d 818, 823–24 (9th Cir.

2011).

C. Petition No. 19-72701

The BIA abused its discretion by denying Petitioner’s second motion to

reopen his asylum application. Petitioner established the changed country

3 conditions necessary to avoid the time and number bars that otherwise would apply

to his second motion to reopen. 8 C.F.R. § 1003.2(c)(3)(ii). Although conflicts

between Azerbaijan and Armenia have been ongoing since the early 1990s, the

record shows that leveling false accusations of spying for Armenia against

deserters or current military members, and then torturing or killing the falsely

accused, is a more recent phenomenon that post-dates Petitioner’s first hearing.

And Petitioner now has Armenian friends and coworkers in the United States.

Thus, Petitioner established "a reasonable likelihood that, if returned to

[Azerbaijan], he faces at least a one-in-ten chance of persecution," Salim v. Lynch,

831 F.3d 1133, 1140 (9th Cir. 2016), because of his imputed political view of

spying for and supporting Armenia, see Singh v. Holder, 764 F.3d 1153, 1159 (9th

Cir. 2014) (holding that "accusations of ‘acting against the government’ constitute

an imputed political opinion").1

PETITION 07-70128 DENIED. PETITION 15-72338 DENIED IN

PART AND DISMISSED IN PART. PETITION 19-72701 GRANTED AND

REMANDED.

1 In a concurrently filed opinion, we address the BIA’s other reason for denying Petitioner’s second motion to reopen.