Bhattarai v. Holder, No. 09-9541

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtChritine M. Arguello
PartiesKAMAL PRASAD BHATTARAI, Petitioner, v. ERIC HOLDER, JR., United States Attorney General, Respondent.
Decision Date01 February 2011
Docket NumberNo. 09-9541

KAMAL PRASAD BHATTARAI, Petitioner,
v.
ERIC HOLDER, JR., United States Attorney General, Respondent.

No. 09-9541

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

Filed: February 1, 2011


ORDER AND JUDGMENT*

Before LUCERO and GORSUCH, Circuit Judges, and ARGUELLO, ** District Judge.

Petitioner Kamal Bhattarai, a native and citizen of Nepal, seeks review of the decision of the Board of Immigration Appeals (BIA), which denied Petitioner's Combined Motion to Reconsider and Motion to Reopen his removal proceedings due to changed circumstances in Nepal. With respect to the Motion to Reopen, the BIA rejected

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Mr. Bhattarai's claim that politically changed circumstances in Nepal establish an increased danger of persecution due to his political opinion and/or his claimed membership in particular political groups. With respect to the Motion to Reconsider, the BIA upheld its prior determination that the previously-submitted evidence was insufficient to establish that his political opinion and/or his claimed membership in a particular social group were central reasons for his past mistreatment. We deny his Petition for Review.

I. BACKGROUND

On or about August 8, 2004, Mr. Bhattarai entered the United States on a nonimmigrant A-2 diplomatic visa to attend an educational program at the University of Wyoming. In early August of 2005, Mr. Bhattarai, after having over-stayed his visa by approximately nine months, filed an affirmative application for asylum and withholding of removal based on alleged past persecution and future persecution due to his political opinion and his membership in political groups. Following an interview, the Department of Homeland Security denied his application and referred him for removal proceedings.

On January 31, 2006, during removal proceedings, Mr. Bhattarai conceded removability, but renewed his claim for asylum, withholding, and, alternatively, voluntary departure. On March 7, 2007, the Immigration Judge (IJ) held a hearing at which Mr. Bhattarai testified that he worked as a computer teacher at a military academy from March 1992, until the time he left Nepal. Mr. Bhattarai is a member of a politically active family, and he has been politically involved since the early 1990's, when he joined the

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Nepali Student Union. Mr. Bhattarai later became involved in the Nepali Congress Party and the Nepali Teachers' Association, among other organizations. Over the course of a year, between January 2003 and January 2004, Mr. Bhattarai received three letters from the Communist Party of Nepal ("Maoists"), each demanding a financial contribution and military information. At no time did Mr. Bhattarai comply with the demands. Accordingly, each subsequent letter contained a demand for a greater amount of money. The last letter warned Mr. Bhattarai that the Maoists denounced him as an enemy of the war and that his and his family's lives were at risk. About a month after Mr. Bhattarai's receipt of the third letter, the Maoists seized Mr. Bhattarai's parents' house and land because they refused to pay the Maoists 50, 0000 Rs. Several months later, in June 2004, Mr. Bhattarai's apartment was completely destroyed by a fire-bomb. Mr. Bhattarai suspected the fire-bomb was set by the Maoists.

In an oral decision announced at the close of the hearing, the IJ denied all relief, concluding that the Maoists targeted Mr. Bhattarai, not because of his political beliefs, but because he did not submit to their demands for money and military information.

Mr. Bhattarai timely appealed the IJ's March 7, 2007 decision arguing that (1) he experienced past persecution on account of his political beliefs, (2) he had a well-founded fear of persecution, and (3) his testimony, the supporting documents, and the conditions in Nepal adequately demonstrated a clear likelihood of future persecution. The appeal included a concurrent request for remand based upon supplemental evidence of changed conditions, namely a state of anarchy then existing in Nepal.

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In a decision dated November 17, 2008, the BIA, finding no error in the IJ's determination that Mr. Bhattarai failed to establish past persecution or a well-founded fear of future persecution in Nepal, dismissed Mr. Bhattarai's appeal.

Mr. Bhattarai did not seek judicial review of the BIA's denial of his appeal. Instead, on December 17, 2008, Mr. Bhattarai timely filed a combined Motion to Reconsider and Motion to Reopen his removal proceedings due to changed circumstances in Nepal.1 In pertinent part, Mr. Bhattarai asserted that the BIA should reopen his case or reconsider his application because: (1) he established past persecution and a well-founded fear of future persecution; (2) substantial grounds exist for believing that he would be in danger of being subject to torture and, therefore, he was eligible for relief under the United Nations' Convention Against Torture (CAT); and (3) changed conditions in Nepal rendered likely his persecution if he returned to Nepal.

In support of his Motion to Reopen, Mr. Bhattarai submitted news articles about the election of a Maoist leader to the office of Prime Minister of Nepal. However, some of the articles suggested that, in light of the Maoists' victory, the country might return to peace. Another article indicated that, prior to the election, the government of Nepal may

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have contributed to the violence more than the Maoists. A third article reported that the newly-elected prime minister "would no longer tolerate" the violence.

On July 10, 2009, the BIA issued a decision denying Mr. Bhattarai's combined Motion to Reopen and Reconsider. With respect to the Motion to Reopen, the BIA found (1) that Mr. Bhattarai had failed to "satisfy his 'heavy burden' of showing that, if his proceedings were reopened, this new evidence would likely change the result reached in this case," and (2) with respect to Mr. Bhattarai's argument that he was entitled to apply for CAT protection, the evidence of the Maoists' recent election victory failed to "demonstrate, prima facie, that it is more likely than not that [Mr. Bhattarai] will be tortured by, or with the consent or acquiescence, [sic] of officials of the Government of Nepal as presently constituted." With respect to the Motion to Reconsider, the BIA concluded that the testimony and supporting evidence failed to establish that Mr. Bhattarai's political opinion and/or his claimed membership in particular political groups was a "central reason" for his past mistreatment or fears of future persecution by the Maoists. Thus, the BIA concluded that there was no error of fact or law in its previous decision denying Mr. Bhattarai's combined Motion to Reopen and Reconsider.

On August 6, 2009, Mr. Bhattarai timely filed the instant Petition for Review of the BIA's denial of his combined Motion to Reopen and Reconsider. Oral argument was presented before this Court on September 23, 2010. Mr. Bhattarai's arguments are summarized as follows: (1) the BIA abused its discretion by applying the incorrect burden

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of proof, (2) the BIA failed to consider dramatic changes in country conditions, 2 and (3) the BIA abused its discretion by issuing a decision devoid of any individualized analysis and simply consisting of "a boilerplate recitation of general standards[.]" For the reasons discussed below, we find no abuse of discretion in the BIA's denial of Mr. Bhattarai's combined Motion to Reopen and Reconsider.

II. ANALYSIS

As noted above, Mr. Bhattarai failed to seek review in this Court of the BIA's November 17, 2008 denial of his asylum appeal. Pursuant to 8 U.S.C. § 1252(d)(1), a "petition for review must be filed not later than 30 days after the date of the final order of removal." The 30-day filing period is "jurisdictional in nature and must be construed with strict fidelity to [its] terms." Stone v. INS, 514 U.S. 386, 405 (1995). Accordingly, this Court does not have jurisdiction to review the BIA's denial of Mr. Bhattarai's asylum appeal. See Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004) (finding lack of jurisdiction to review BIA's order affirming IJ's denial of asylum application because petitioner did not timely file a petition of review within thirty days of the BIA's order) (citing Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003)). Further, the filing of a motion to reconsider does not toll the statute's 30-day filing deadline. See,

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e.g., Stone, 514 U.S. at 394-406; Belay-Gebru v. INS, 327 F.3d 998, 1000 (10th Cir. 2003) ("a petition for review of a final order of exclusion or deportation must be filed with the court of appeals not later than thirty days after issuance of the final order," i.e., after the BIA denies an appeal) (citing 8 C.F.R. § 1241.31); Mana v. Gonzales, 128 Fed. Appx. 167, 169 (1st Cir. 2005) (unpublished) (finding that the 30-day filing period was not tolled by a motion to reconsider) (citing 8 U.S.C. § 1252(b)(1)); Valdivia v. Gonzales, 128 Fed. Appx. 564 (9th Cir. 2005) (unpublished) (similar holding). However, because Mr. Bhattarai filed the instant Petition for Review within 30-days of the BIA's denial of his combined Motion to Reopen and Reconsider based on changed country conditions, we do have jurisdiction to consider the BIA's denial of the combined motion to reopen and reconsider.

A. Motion to Reopen

"The BIA has broad discretion, conferred by the Attorney...

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