OUM v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-03-15No. No. 18-71051

Summary · law.co

Holding. The petition for review is denied. The Board of Immigration Appeals did not abuse its discretion in denying Oum's motion to reopen where new evidence of changed country conditions was immaterial because she had already failed to credibly establish membership in the persecuted group.

Saloun Oum, a Cambodian citizen, sought asylum and withholding of removal based on claims of political persecution. An immigration judge rejected her application in 1999 after finding she had not credibly established that she was a key political figure in an opposition party. After multiple unsuccessful appeals and motions, Oum filed a second motion to reopen in 2017, presenting new evidence of changed country conditions showing increased political persecution in Cambodia.

Oum argued that the new evidence of political persecution should justify reopening her case. However, the Board of Immigration Appeals determined that the new evidence was immaterial because the core issue—whether Oum actually belonged to the persecuted political group—had already been resolved against her through the initial adverse credibility finding. The Board did not question whether the country conditions evidence itself was credible; rather, it concluded that even if true, the evidence could not help Oum's case since she had never established membership in a persecuted group.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether new evidence of changed country conditions can reopen asylum proceedings when the petitioner's group membership was already denied
Whether the Board abused its discretion in deeming country condition evidence immaterial based on a prior adverse credibility finding
The distinction between challenging the credibility of new evidence versus determining its materiality to a claim

Procedural posture

Petitioner sought review of the Board of Immigration Appeals' denial of her second motion to reopen proceedings in an asylum case originally decided by an immigration judge in 1999.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

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 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 Oums application for asylum and withholding of removal and granted Oums 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 IJs denial, and in April 2002, the Board summarily dismissed Oums 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 Boards October 2002 order, and in June 2004, our court denied Oums petition. Oum v. Ashcroft, 101 F. Appx 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 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 Oums claim because Oum failed to establish credibly her membership in the persecuted group.

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 Oums 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 Oums second motion to reopen. The petition for review is DENIED.

FOOTNOTES

. On appeal, Oum argues that the IJ did not make an explicit credibility finding; however, the IJs adverse credibility determination is sufficiently clear. The record also indicates that Oum has previously conceded that the IJ issued an adverse credibility determination.