Kalam Ullah v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KALAM ULLAH,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-989
Agency No.
A075-653-618
MEMORANDUM*
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.
FILED
NOV 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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

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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.

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