Saloun Oum v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
MAR 15 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALOUN OUM, No. 18-71051
Petitioner, Agency No. A075-500-918
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 11, 2021**
San Francisco, California
Before: WALLACE, GOULD, and FRIEDLAND, Circuit Judges.
Petitioner Saloun Oum, a native and citizen of Cambodia, seeks review of
the decision of the Board of Immigration Appeals (Board) denying her motion to
reopen proceedings. We have jurisdiction under 8 U.S.C. § 1252 to review final
*
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).
orders of the Board denying motions to reopen proceedings. “We review denials
of motions to reopen for abuse of discretion.” Najmabadi v. Holder, 597 F.3d 983,
986 (9th Cir. 2010). We deny the petition for review.
In March 1999, the Immigration Judge (IJ) on the basis of an adverse
credibility determination denied Oum’s application for asylum and withholding of
removal and granted Oum’s request for voluntary departure. The IJ found that
Oum “failed to credibly establish that she was a key political player in a political
party opposed to the government of Cambodia.” Oum appealed from the IJ’s
denial, and in April 2002, the Board summarily dismissed Oum’s appeal. In May
2002, Oum filed her first motion to reopen, and in October 2002, the Board denied
the motion. Oum petitioned our court to review the Board’s October 2002 order,
and in June 2004, our court denied Oum’s petition. Oum v. Ashcroft, 101 F. App’x
703 (9th Cir. 2004). On November 2, 2017, Oum filed her second motion to
reopen, citing changed conditions in Cambodia relating to political persecution.
The Board does not abuse its discretion when it denies a motion to reopen
proceedings based on new evidence of changed country conditions relating to the
persecution of a group when “it had already been conclusively determined that [the
petitioner] was not” a member of the persecuted group. Toufighi v. Mukasey, 538
F.3d 988, 996 (9th Cir. 2008). Oum submitted evidence of changed country
2
conditions regarding political persecution in Cambodia and asserts that the “ruling
party has targeted the political leadership of the political party [Oum] worked for.”
However, the IJ already found that Oum failed to establish credibly that “she was a
key political player in a political party opposed to the government of Cambodia.”
The Board properly determined that the new evidence of political persecution in
Cambodia was immaterial to Oum’s claim because Oum failed to establish
credibly her membership in the persecuted group.1
Oum cites Shouchen Yang v. Lynch, 822 F.3d 504 (9th Cir. 2016) for
support, but the case is inapposite. Id. at 508 (holding that the Board may not
determine that new evidence supporting a motion to reopen is incredible because
the IJ previously made an adverse credibility determination). The Board did not
dispute the credibility of Oum’s new evidence of changed country conditions but
instead concluded it was immaterial to her claim. Shouchen Yang is clearly
distinguishable from this case.
Accordingly, Board did not abuse its discretion in denying Oum’s second
motion to reopen. The petition for review is DENIED.
1
On appeal, Oum argues that the IJ did not make an explicit credibility finding;
however, the IJ’s adverse credibility determination is sufficiently clear. The record
also indicates that Oum has previously conceded that the IJ issued an adverse
credibility determination.
3