F.a. v. ERIC H. HOLDER JR., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
F.A.,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney General,
Respondent.
No. 10-72448
Agency No. A077-009-091
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2014**
Pasadena, California
Before: FERNANDEZ, GRABER, and MURGUIA, Circuit Judges.
Petitioner F.A., a native and citizen of Jordan, petitions for review of an
order issued by the Board of Immigration Appeals ("BIA") denying as untimely his
motion to reopen deportation proceedings. We previously denied Petitioner’s
application for asylum, withholding of removal, and protection under the
FILED
MAR 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF 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. Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

Convention Against Torture ("CAT"), in which Petitioner alleged persecution
because of his involvement in the Jordanian peace movement. On November 3,
2009, Petitioner untimely moved to reopen, arguing changed country conditions
with respect to him because his family in Jordan had learned that he was in a
homosexual relationship in the United States. Reviewing for abuse of discretion
the BIA’s denial of a motion to reopen, He v. Gonzales, 501 F.3d 1128, 1130 (9th
Cir. 2007), we deny the petition for review.
The BIA did not abuse its discretion in holding that Petitioner failed to
establish "prima facie eligibility for the relief sought [in his] . . . motion to reopen."
Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869–70 (9th Cir. 2003). The BIA
permissibly took judicial notice, 8 C.F.R. § 1003.1(d)(3)(iv), of the 2009 U.S. State
Department Report on Jordan, which stated that homosexuality was not illegal in
Jordan, contrary to Petitioner’s arguments and the country condition information
that he provided, which dated from 1995 to 2004. The BIA permissibly concluded
that the State Department Report showed, at most, societal discrimination against
homosexuals and that Petitioner failed to show practices amounting to persecution
of homosexuals or to torture with the acquiescence of the government. See
Wakkary v. Holder, 558 F.3d 1049, 1061 (9th Cir. 2009) (persecution by private
individuals is grounds for relief only when it is "sufficiently widespread and the
2

-- 2 of 3 --

government is unable or unwilling to control those actors"); Bromfield v.
Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008) (government acquiescence to
torture is necessary to sustain a CAT claim).1
The BIA therefore did not abuse its discretion in holding that Petitioner
failed to meet his "heavy burden" to show cause for a motion to reopen. INS v.
Doherty, 502 U.S. 314, 323 (1992); INS v. Abudu, 485 U.S. 94, 109–10 (1988).
DENIED.
1 Petitioner has waived any argument that the BIA failed to give him an
opportunity to respond to the 2009 State Department report.
3

-- 3 of 3 --