Ullah v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2023
• Docket: 22-989
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KALAM ULLAH, No. 22-989 Agency No. Petitioner, A075-653-618 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 16, 2023** San Francisco, California

Before: FORREST and MENDOZA, Circuit Judges, and OLIVER, Senior District Judge.***

Petitioner Mohammed Sayedul Hoq, also known as Kalam Ullah, is a native

* 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 Solomon Oliver Jr., United States Senior District Judge for the Northern District of Ohio, sitting by designation. and citizen of Bangladesh. He petitions for review of a Board of Immigration

Appeals (“BIA”) decision denying his motion to reopen his removal proceedings

as inexcusably untimely. We have jurisdiction under 8 U.S.C. § 1252 and “review

the BIA’s denial of a motion to reopen for abuse of discretion.” Agonafer v.

Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017). We deny the petition for review.

Motions to reopen proceedings must be filed within 90 days of the final

administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). Mr. Hoq’s motion

is approximately four years too late. But he contends that there is an applicable

exception to that timeliness bar: changed conditions in the country to which

removal has been ordered. Id. at § 1229a(c)(7)(C)(ii); see also Agonafer, 859 F.3d

at 1203–04 (“[T]he ninety-day deadline . . . do[es] not apply if the motion to

reopen is based on changed country conditions.”). To qualify for this exception,

Mr. Hoq must produce previously unavailable, material evidence of changed

conditions that, when considered with the evidence presented at the original

hearing, would establish prima facie eligibility for the relief he seeks. See Silva v.

Garland, 993 F.3d 705, 718 (9th Cir. 2021). Mr. Hoq has not made this showing.

First, the BIA did not err when it found that Mr. Hoq is statutorily ineligible

for asylum benefits. “Under 8 U.S.C. § 1158(d)(6), an asylum applicant who is

determined to have knowingly filed a frivolous application is permanently

ineligible for immigration benefits.” Cheema v. Holder, 693 F.3d 1045, 1046 (9th

2 22-989 Cir. 2012); see also Kalilu v. Mukasey, 548 F.3d 1215, 1217 (9th Cir. 2008) (per

curiam) (same). As we recently affirmed, Mr. Hoq previously filed a “frivolous

asylum application” under “the fictitious name Kalam Ullah.” See Ullah v. Barr,

793 F. App’x 551, 552 (9th Cir. 2020), amended and superseded by Ullah v. Barr,

812 F. App’x 449 (9th Cir. 2020). Thus, Mr. Hoq’s prior application rendered him

“ineligible for all immigration benefits under Chapter 12.” Manhani v. Barr, 942

F.3d 1176, 1179 (9th Cir. 2019).

Second, substantial evidence supports the BIA’s determination that

conditions have not materially changed in Bangladesh, which might excuse

Mr. Hoq’s untimely motion. Mr. Hoq contends that his refusal to work with a

corrupt Bangladeshi businessman, his exposure of that businessman’s unlawful

dealings, and the threats that he and his family have received as a result are

evidence of changed country conditions. But as we have explained, personal-

circumstance changes “are only relevant where [they] are related to the changed

country conditions that form the basis for the motion to reopen.” Rodriguez v.

Garland, 990 F.3d 1205, 1209–10 (9th Cir. 2021); see also id. (“General

references to ‘continuing’ or ‘remaining’ problems is not evidence of a change in a

country’s conditions.” (emphasis omitted)). The BIA properly determined that Mr.

Hoq primarily relied on evidence of political violence in Bangladesh from 1993

and 2010–17. This evidence does not demonstrate any relevant changes that have

3 22-989 occurred since the removal order was issued that might warrant reopening, and his

evidence of changed personal circumstances in this case does not inform the

general conditions in Bangladesh.

Third, Mr. Hoq’s two new arguments—that the 2018 Bangladeshi elections

were unfair and his family is a particular social group—were not raised before the

BIA. The government has preserved the exhaustion issue, and we decline to reach

these arguments. See Santos-Zacaria v. Garland, 598 U.S. 411, 419 (2023)

(reasoning that 8 U.S.C. § 1252(d)(1) is a claim-processing rule).

PETITION DENIED.

4 22-989