SOKHON NELMS, AKA Sokhon Khourn v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOKHON NELMS, AKA Sokhon Khourn,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-71922
Agency No. A099-292-630
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 21, 2023 **
Before: OWENS, LEE, and BUMATAY, Circuit Judges.
Sokhon Nelms, a native and citizen of Cambodia, petitions for review of the
Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from the
Immigration Judge’s (“IJ”) denial of her motion to reopen. The BIA dismissed
Nelms’s appeal because her motion to reopen was untimely and she did not qualify
* 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).
FILED
FEB 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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for the changed country conditions exception to the filing deadline because 1) she
did not show a material change in country conditions in Cambodia and 2) she did
not show that she was prima facie eligible for asylum, withholding of removal, or
Convention Against Torture protection (“CAT”), the ultimate forms of relief she
sought. As the parties are familiar with the facts, we do not recount them here.
We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.
We review the BIA’s denial of a motion to reopen for an abuse of discretion.
Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022). The agency
abuses its discretion when its decision is “arbitrary, irrational, or contrary to law.”
Id. (citation omitted).
A noncitizen ordered removed has a statutory right to file a motion to reopen
within ninety days of the date of their final removal order.
8 U.S.C. § 1229a(c)(7)(C)(i). Nelms filed her motion to reopen on October 31,
2017, approximately ten months after her removal order became administratively
final on January 3, 2017. Her motion is therefore untimely unless she meets the
changed country conditions exception.
There is no time limit for a motion to reopen where the motion “is based on
changed country conditions arising in the country of nationality . . . if such
evidence is material and was not available and would not have been discovered or
presented at the previous proceeding.” Id. § 1229a(c)(7)(C)(ii). To qualify for this

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exception the petitioner must, among other things, demonstrate prima facie
eligibility for the underlying relief sought. Agonafer v. Sessions, 859 F.3d 1198,
1204 (9th Cir. 2017). “Prima facie eligibility for relief is established when the
evidence reveals a reasonable likelihood that the statutory requirements for relief
have been satisfied.” Sarkar v. Garland, 39 F.4th 611, 622 (9th Cir. 2022)
(citation and internal quotation marks omitted).
Nelms failed to show prima facie eligibility for asylum, withholding,
or CAT. To qualify for asylum absent past persecution, a petitioner must
demonstrate a well-founded fear of future persecution. Id. For withholding
of removal and CAT, respectively, a petitioner must show that they are more
likely than not to suffer persecution or torture. Id. at 622-23. Nelms has not
previously suffered persecution in Cambodia, and she did not demonstrate
that it is reasonably likely that she has a well-founded fear of persecution or
that she is more likely than not to suffer persecution or torture there.
At most, her evidence shows that her marriage to a U.S. immigration
officer and her conviction for witness tampering appeared in the Cambodian
media and that she has received reports that people would hurt her if she
stayed with her husband and phone calls accusing her of being a U.S.
government spy. Nelms does not specifically allege that any of the threats
originated in Cambodia. Many, and maybe all, of the threats or accusations

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she received came from within the United States. She also cites lists and
emails supposedly showing deportees to Cambodia who allegedly want to
hurt her and her husband because her husband caused them to be deported.
However, the source of the lists is uncertain and there is no indication that
anyone listed has expressed a desire to harm her or her husband or even that
they know about her husband’s role in their deportation. Finally, the Human
Rights Report she includes sheds little light on her situation.
On this record, we agree with the BIA that her fear of persecution and
torture in Cambodia is “unduly speculative.” Therefore, we cannot say that
the BIA abused its discretion in refusing to overturn the IJ’s denial of
Nelms’s motion to reopen.
Because the failure to establish a prima facie case is an independently
sufficient ground on which to deny a motion to reopen in this context,
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010), we do not address
whether Nelms demonstrated changed country conditions.
Lastly, we do not have jurisdiction to review the BIA’s refusal to
grant sua sponte reopening because the BIA’s decision did not rest on any
errors of law. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
PETITION DENIED.

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