Samir Elias Fashho v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMIR ELIAS FASHHO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 12-70551
Agency No. A029-891-384
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 5, 2016**
San Francisco, California
Before: WALLACE, KOZINSKI, and O’SCANNLAIN, Circuit Judges.
Samir Elias Fashho challenges a decision of the Board of Immigration
Appeals (“BIA”) denying his untimely motion to reopen removal proceedings
based on changed country conditions consisting of the takeover of the Gaza Strip
by Hamas. We deny the petition for review.
FILED
JAN 08 2016
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. See Fed. R. App. P. 34(a)(2).

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I
In order to prevail on his motion to reopen, Fashho needed to clear each of
four hurdles:
(1) he had to produce evidence that conditions had changed in [Gaza]; (2)
the evidence had to be “material”; (3) the evidence must not have been
available and would not have been discovered or presented at the previous
proceeding; and (4) he had to “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.”
Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008) (citations omitted). “The
Board could thus deny the motion to reopen for failing to meet any of these
burdens.” Id. (citations omitted). We review for abuse of discretion the BIA’s
denial of a motion to reopen and defer “to the Board’s exercise of discretion unless
it acted arbitrarily, irrationally or contrary to law.” Id. at 992.
A
First, Fashho points to the emigration of Christians from Gaza as evidence of
persecution of Christians. The BIA correctly concluded that the data do not clearly
show that Christians are emigrating, that emigration accelerated after Hamas’
takeover, or that the Christian population is decreasing because of religious
persecution rather than economic, security, and fertility reasons.
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Thus, Fashho’s new evidence of emigration, to the extent there is any, does
not show changed conditions and is not “material.”
B
Second, Fashho points to new evidence purportedly showing that Hamas is
unable or unwilling to protect Christians in Gaza. A 2010 State Department report
noted that “Hamas largely tolerated the small Christian presence in Gaza and did
not force them to abide by Islamic law, although Christians were indirectly
affected by Hamas’ religious ideology. Hamas did not sufficiently investigate or
prosecute religiously driven crimes committed by Muslim extremist vigilante
groups in Gaza.” Additionally, the report states that the Palestinian Authority
(“PA”) was not able to investigate cases of religious discrimination in Gaza due to
Hamas’ control.
The BIA concluded that this evidence did not reflect a material change in
conditions from 2004. A 2004 State Department report “noted that there was
‘deterioration in the status of the PA’s respect for religious freedom,’ including the
seizure of land owned by Christians by criminal gangs, and collusion by PA
officials with criminals to extort property from Christians. While cases of physical
attacks against Muslims were investigated, such cases involving Christians were
not. Although relationships between Christians and Muslims ‘generally’ were
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amicable, tensions existed.”
Because attacks against Christians were not being investigated in 2004, the
BIA correctly concluded that Fashho had failed to demonstrate that Hamas’ failure
to investigate such crimes in 2010 reflected a material change in circumstances.
C
Third, Fashho points to the bombing of a YMCA library in Gaza in 2008 as
evidence of persecution of Christians. The BIA noted that the library was targeted
by unidentified gunmen who stole a computer; that Muslims also used the YMCA;
and that Hamas condemned the bombing as an “attack on the historically friendly
relations between Christians and Muslims in Palestine.”
The BIA found the article of little probative value because the attackers’
identities and motives were unknown. It reasonably concluded that such isolated,
unsolved crimes do not constitute material evidence of changed conditions in Gaza.
D
We conclude that the BIA did not act arbitrarily, irrationally, or contrary to
law in finding that Fashho’s evidence does not constitute new, material evidence
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showing changed conditions in Gaza.1 Therefore, we hold that the BIA did not
abuse its discretion when it denied Fashho’s motion to reopen. See Toufighi, 538
F.3d at 992.
II
Fashho argues that he has a well-founded fear of future persecution and that
he stated a prima facie case for withholding of removal and CAT relief. Because
the BIA denied Fashho’s motion to reopen based on his independently dispositive
failure to submit new, material evidence showing changed conditions, it did not
need to determine whether Fashho established a prima facie case for asylum or any
other relief. See Najmabadi v. Holder, 597 F.3d 983, 991–92 (9th Cir. 2010). Our
review is limited to the grounds relied upon by the agency, so we decline to
address this additional claim. See id. at 992.
DENIED.
1 In addition to the evidence specifically discussed above, none of Fashho’s
other evidence addresses persecution of Christians in Gaza, and none of it
constitutes new, material evidence showing changed conditions.
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