Vaid v. Eric H. Holder, Jr. , 499 F. App'x 679 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SUCHITRA DEVI VAID, No. 07-73449
Petitioner, Agency No. A072-399-535
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Acting Attorney General,
Respondent.
SUCHITRA DEVI VAID, No. 08-71218
Petitioner, Agency No. A072-399-535
v.
ERIC H. HOLDER, Jr., Attorney General,
Acting Attorney General,
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted October 19, 2012
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
San Francisco, California
Before: FISHER, TALLMAN, and CALLAHAN, Circuit Judges.
Petitioner Suchitra Devi Vaid, a Fijian native of Indian descent, petitions for
review of the Board of Immigration Appeals’ (“BIA”) denial of her application for
asylum and withholding of removal and the BIA’s subsequent denial of her motion
to reopen. The BIA affirmed the IJ’s finding that Vaid failed to establish past
persecution or a well-founded fear of persecution on account of her Indian
ethnicity. Additionally, the BIA denied Vaid’s motion to reopen for adjustment of
status or changed country conditions because she failed to present an immediately
available visa as required for an adjustment status and failed to show materially
changed country conditions. The petitions for review are denied.1
1. The BIA’s findings are “conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). To establish past persecution Vaid must
show: (1) incidents that rise to the level of persecution, (2) that the persecution is
based on a protected ground, and (3) that the government was unwilling or unable
to control the private actors responsible for the persecution. Sinha v. Holder, 564
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Because the parties are familiar with the facts and procedural history
we do not restate them here except as necessary to explain our decision.
2
F.3d 1015, 1020 (9th Cir. 2009). Vaid’s allegations of sexual harassment, stones
thrown at her car, denial of a promotion, and an attempted assault at work, even
when considered cumulatively, fall far short of compelling a finding of
persecution. Compare Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996), with
Prasad v. INS, 47 F.3d 336, 339–40 (9th Cir. 1995). Furthermore, Vaid failed to
demonstrate a well-founded fear of future persecution because she failed to
establish past persecution and offered no persuasive evidence of future persecution.
Lolong v. Gonzales, 484 F.3d 1173, 1180 (9th Cir. 2007). Thus, Vaid has failed to
make the compelling showing necessary for relief.
2. The BIA’s denial of a motion to reopen is reviewed for an abuse of
discretion. Ordonez v. INS, 345 F.3d 777, 782 (9th Cir. 2003). A motion to reopen
for adjustment of status requires the petitioner to show that she has made an
application for such adjustment, she is eligible to receive an immigrant visa, and an
immigrant visa is readily available to her at the time her application is filed. 8
U.S.C. § 1255(a); 8 C.F.R. § 1003.2. Vaid did not establish prima facie eligibility
for adjustment of status because she did not present an immediately available visa.
Therefore, the BIA did not abuse its discretion by denying Vaid’s motion to reopen
for an adjustment of status.
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3. A motion to reopen for changed country conditions requires the
petitioner to provide evidence of country conditions that are materially different
than those provided originally and are linked to her particular circumstances.
8 U.S.C. § 1158(a)(2)(D). Vaid’s evidence of continued instability and inter-ethnic
tension in Fiji, as demonstrated by the 2006 coup, is neither significantly different
from the inter-ethnic violence described in her original application nor is it linked
to her particular circumstances. Therefore, the BIA did not abuse its discretion by
denying Vaid’s motion to reopen for changed country conditions.
The petition for review is DENIED.
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