Sun Daing v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Glenn L. Archer, Jr., Senior United States Circuit**
Judge for the Federal Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUN DAING,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney
General,
Respondent.
No. 06-70210
Agency No. A095-585-118
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 15, 2010
San Francisco, California
Before: KOZINSKI, Chief Judge, ARCHER, Senior Circuit Judge, and**
CALLAHAN, Circuit Judge.
Whether Daing suffers from a mental impairment that excuses his untimely
asylum application is a disputed factual question over which we lack jurisdiction.
See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam).
FILED
APR 30 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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page 2
Assessing the severity of Daing’s depression involves an unreviewable
determination “dependent . . . upon the identity of the person.” Id. at 656 (internal
quotation marks omitted) (alteration in original). We lack jurisdiction over the
denial of the motion to reopen because it pertains to the merits of this previously-
made discretionary determination. See Fernandez v. Gonzales, 439 F.3d 592, 603
(9th Cir. 2006).
Substantial evidence supports the BIA’s denial of the application for
withholding of removal because Daing didn’t demonstrate a likelihood of future
persecution. Even if we assume that Daing suffered past persecution as a child, the
government has rebutted the presumption based on that persecution by
demonstrating a “fundamental change in circumstances.” Hanna v. Keisler, 506
F.3d 933, 938 (9th Cir. 2007). The immigration judge reasonably found that
“country conditions have quite obviously changed and changed to such a radical
degree that [Daing’s] experiences [pre-1979] provide no basis for a well-founded
fear of future persecution.” Daing’s unpleasant experiences post-1979 don’t rise to
the level of persecution, and therefore don’t establish a presumption of future
persecution.
DISMISSED IN PART AND DENIED IN PART.

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