Abdullah Al-Fakih v. Loretta E. Lynch
657 F. App'x 692
| 9th Cir. | 2016Background
- Al-Fakih, a Yemeni national, applied in 2002 for asylum, withholding of removal, and CAT relief; an IJ denied relief and the BIA affirmed in 2004; no petition for review was filed then.
- In 2011 he filed a motion to reopen based on changed country conditions in Yemen; the BIA denied the motion.
- While this petition was pending, he filed a motion to reconsider the BIA’s denial; the BIA denied reconsideration and treated some new evidence as a successive motion to reopen.
- The BIA concluded Al-Fakih’s evidence showed only generalized civil strife, not individualized risk or inability to relocate within Yemen.
- Al-Fakih also sought humanitarian asylum; the BIA viewed this as a request for sua sponte reopening and denied it.
- The Ninth Circuit consolidated review of the motions and denied the petitions for review, reviewing only the grounds the BIA relied upon for abuse of discretion.
Issues
| Issue | Al‑Fakih's Argument | Government / BIA Argument | Held |
|---|---|---|---|
| Whether changed country conditions excuse the 90‑day filing bar for reopening | Country conditions in Yemen have deteriorated since 2004, entitling him to reopen | Evidence is generalized countrywide violence, not individualized/material to his claim | Denied; evidence not sufficiently individualized or material |
| Whether internal relocation in Yemen is feasible | His sons relocated to a different Yemeni city; relocation is not possible for him | Sons’ relocation shows relocation within Yemen is plausible; no evidence sons were threatened after moving | Denied; no showing he could not relocate; BIA need not analyze every relocation factor |
| Whether the motion to reconsider was timely and reviewable | Challenges IJ’s 2003 factual/legal findings and submitted new evidence | Motion to reconsider should have been filed earlier; collateral attacks are time‑barred; new evidence repeats same deficiencies | Denied as time‑barred; new evidence insufficient to reopen |
| Whether humanitarian asylum was available / properly considered | Seeks humanitarian asylum based on past persecution severity | BIA treated request as sua sponte reopening (not reviewable) and also held changed‑circumstances evidence insufficient | Denied; court lacks jurisdiction over sua sponte reopening and BIA’s alternative denial for lack of material changed circumstances affirmed |
Key Cases Cited
- Najmabadi v. Holder, 597 F.3d 983 (9th Cir.) (generalized country conditions insufficient to show material, individualized changed circumstances)
- Morales Apolinar v. Mukasey, 514 F.3d 893 (9th Cir.) (scope of review limited to grounds relied on by the BIA)
- Mohammed v. Gonzales, 400 F.3d 785 (9th Cir.) (humanitarian asylum requires past persecution on a protected ground and compelling reasons not to return)
- Ekimian v. INS, 303 F.3d 1153 (9th Cir.) (courts lack jurisdiction to review BIA refusal to reopen sua sponte)