                                                                          FILED
                    UNITED STATES COURT OF APPEALS                         OCT 27 2011

                                                                      MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                       U .S . CO UR T OF AP PE A LS




MOHSEN HAGHIGHATPOUR,                           No. 07-70872

              Petitioner,                       Agency No. A023-387-462

  v.
                                                ORDER
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.




MOHSEN HAGHIGHATPOUR,                           No. 07-73100

              Petitioner,                       Agency No. A023-387-462

  v.
                                                ORDER
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



Before: PREGERSON, FISHER, and BERZON, Circuit Judges.


       The Memorandum Disposition filed on July 27, 2011 is amended as follows:

       Replace the paragraph on pages 8-9 that states ä5. Substantial evidence

supports the BIA's rejection of Haghighatpour's Convention Against Torture

(CAT) claim, which was premised on the possibility that Germany would deport
him to Iran and on his inability to worµ in his chosen field in Germany. Nothing in

the record beyond Haghighatpour's assertions indicates that Germany is liµely to

deport him to Iran. And the inability to find employment in one's chosen field

does not amount to torture.â with ä5. Haghighatpour's Convention Against

Torture (CAT) claim was premised on the possibility that Germany would deport

him to Iran and on his inability to worµ in his chosen field in Germany. The

inability to find employment in one's chosen field does not amount to torture. If,

however, on remand, the BIA finds that once removed to Germany, Haghighatpour

is more liµely than not to be further removed to Iran, it should assess whether he is

therefore entitled to CAT relief.â.

      With this amendment, the petition for panel rehearing is DENIED.

      No further petitions will be entertained.
                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 27 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



MOHSEN HAGHIGHATPOUR,                            No. 07-70872

              Petitioner,                        Agency No. A023-387-462

  v.                                             AMENDED
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



MOHSEN HAGHIGHATPOUR,                            No. 07-73100

              Petitioner,                        Agency No. A023-387-462

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted May 5, 2011
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PREGERSON, FISHER, and BERZON, Circuit Judges.

      Mohsen Haghighatpour petitions for review of decisions by the Board of

Immigration Appeals (BIA) dismissing his appeal and denying his motion to

reopen. We grant Haghighatpour's petition in part and remand to the BIA.

      1.     Substantial evidence supports the BIA's determination that

Haghighatpour failed to establish that he was a victim of spousal abuse for the

purposes of cancellation of removal. See 8 U.S.C. y 1229b(b)(2); see also

Hernandez v. Ashcroft, 345 F.3d 824, 834-35 (9th Cir. 2003). The evidence

includes Haghighatpour's quite detailed arrest report; the 3-year restraining order

his wife obtained against him after a hearing at which Haghighatpour was present;

neighbors' failure to corroborate Haghighatpour's story; and medical records in

which Haghighatpour's wife reported that her husband was abusing her. Although

there is some contrary evidence, the record does not compel a finding that

Haghighatpour was battered or subjected to extreme cruelty by his wife.

      2.     The BIA determined Haghighatpour's asylum application untimely

because he had failed to establish that he either filed it within one year of his

arrival in the United States or qualified for an exception to the deadline. See 8

U.S.C. y 1158(a)(2)(B) and (D); 8 C.F.R. y 208.4(a)(2)(i)(A) and (B). We may




                                            2
review the application of y 1158's one-year bar 'to undisputed historical facts.'

Ramadan v. Gonzales, 479 F.3d 646, 654 (9th Cir. 2007) (per curiam).

       Assuming that the BIA and IJ were correct that Haghighatpour filed his

application five days after the one-year deadline, the record compels a finding that

Haghighatpour filed within a reasonable period after extraordinary circumstances

ended. The BIA erred in determining otherwise.

       First, the BIA should have analyzed Haghighatpour's claim that there was an

applicable exception under the 'extraordinary circumstances,' not the 'changed

circumstances' rubric. Changed circumstances must 'materially affect the

applicant's eligibility for asylum,' while extraordinary circumstances are those that

'relat[e] to the delay in filing.' 8 U.S.C. y 1158(a)(2)(D). That Haghighatpour

had an adjustment application pending until February 24, 2000, shortly before he

filed his asylum application, 'relat[es] to [his] delay in filing,' not to his eligibility

for asylum. Id. For example, a situation in which an applicant maintained one of

various types of legal status in the United States until a reasonable period before

filing is a recognized extraordinary circumstance. See 8 C.F.R. y 208.4(a)(5)(iv).

       Second, the BIA erred in concluding that because his marriage had failed

well before his adjustment application was denied, Haghighatpour had not filed

within a reasonable period. '[T]he nonviability of a marriage at the time of


                                             3
adjustment is not a permissible basis for denying a petition.' Hernandez, 345 F.3d

at 846. Denial of adjustment of status was therefore not inevitable at the time the

marriage failed.

      Once adjustment was denied, Haghighatpour filed his asylum application

within a month, a reasonable period in which to do so. See Husyev v. Muµasey,

528 F.3d 1172, 1182 (9th Cir. 2008); 65 Fed. Reg. 76,121-01, 76,123-24. The

record therefore compels a finding that Haghighatpour filed within a reasonable

period after the 'extraordinary circumstances relating to the delay in filing an

application' ended. 8 U.S.C. 1158(a)(2)(D). We therefore remand to the BIA to

consider Haghighatpour's claim for asylum from Germany on the merits.1

      3.     In concluding that Haghighatpour was firmly resettled in Germany,

see 8 U.S.C. y 1158(b)(2)(A)(vi), the BIA failed to apply the offer-based firm

resettlement standard articulated in Maharaj v. Gonzales, 450 F.3d 961 (9th Cir.

2006) (en banc). Instead, the BIA tooµ a totality of the circumstances approach,



      1
        Haghighatpour seeµs asylum from both Iran and Germany, but the question
of whether he was firmly resettled in Germany must be resolved before his claim
for asylum from Iran can be considered on the merits. The government appears to
argue that firm resettlement in Germany would bar Haghighatpour's application for
asylum not only from Iran, but also from Germany. Because neither the BIA nor IJ
addressed whether a petitioner can seeµ asylum from his country of resettlement,
we do not resolve the issue. See Nahrvani v. Gonzales, 399 F.3d 1148, 1152 & n.1
(9th Cir. 2005).

                                           4
expressly giving weight to the number of years Haghighatpour had lived in

Germany, as well as his schooling and worµ in Germany, his marriage to a German

citizen, and his travel using German-issued documents. Under Maharaj and

Matter of A-G-G-, 25 I. & N. Dec. 486 (B.I.A. 2011), the BIA should have focused

directly on whether the government had met its burden of 'showing that

[Haghighatpour] had an offer of some type of official status permitting him to

reside in [Germany] indefinitely.' Maharaj, 450 F.3d at 964 (emphasis added).

      The record in this case is unclear as to whether Haghighatpour received an

offer of permanent residency in Germany. Haghighatpour testified that he had

'permanent residency,' and so acµnowledged on several forms. But he also stated

unequivocally that his residency permit did not allow him to remain in Germany

permanently, testified that he was on a student visa for his entire time in Germany,

and explained that the type of residency he had in Germany required him to remain

a student or be employed. The government did not identify what type of residency

permit Haghighatpour had, or how the German residency laws operate. See

Maharaj, 450 F.3d at 977; Matter of A-G-G-, 25 I. & N. Dec. at 502, 504-05.

      Because the BIA applied the wrong legal frameworµ in maµing its firm

resettlement determination, it never determined the terms of Haghighatpour's

residency in Germany. We remand for the agency to apply the offer-based


                                          5
frameworµ articulated in Maharaj and Matter of A-G-G-. Given the state of the

record, a remand bacµ to the IJ 'to conduct further fact-finding consistent with the

[firm resettlement] frameworµ' may be necessary before the BIA can apply that

frameworµ. Matter of A-G-G-, 25 I. & N. Dec. at 505; see also Maharaj, 450 F.3d

at 977.

      4.     The BIA determined that Haghighatpour failed to establish a clear

probability of persecution on any protected ground if removed to Germany. See 8

U.S.C. y 1231(b)(3)(A). We address each protected ground asserted in turn.

             a.    Nationality or Race. The only nationality or race-based

persecution properly exhausted before the BIA was Haghighatpour's claim that he

was persecuted in Germany by private German citizens because he was a foreigner.

The BIA's rejection of that claim is supported by substantial evidence.

      Haghighatpour's evidence concerning a nexus to a protected ground consists

of vague and general accusations of widespread racism, neo-Nazism, and anti-

foreigner sentiment. This indistinct evidence does not compel the conclusion that

the attacµs Haghighatpour suffered were because of his race or nationality. Cf.

Mashiri v. Ashcroft, 383 F.3d 1112, 1121 (9th Cir. 2004) (noting that the petitioner

'testified specifically about anti-foreigner slogans or symbols that accompanied

nearly every violent incident'); Baballah v. Ashcroft, 367 F.3d 1067, 1077 (9th


                                          6
Cir. 2004) (relying on petitioner's own belief and persecutors' use of the

derogatory slur 'goy' as satisfying the 'on account of' prong).

      We therefore deny the petition with regard to persecution in Germany on

account of his race or nationality.

               b.   Religion. Substantial evidence also supports the BIA's

rejection of Haghighatpour's religion-based claim for withholding. The record

reveals only that Haghighatpour is a Scientologist, that Scientologists in Germany

face discrimination and harassment, and that Haghighatpour lost a job offer at a

public university because he was a Scientologist. Haghighatpour, however, was

able to find some worµ and continue to practice his religion. See Nagoulµo v. INS,

333 F.3d 1012, 1016 (9th Cir. 2003); Gormley v. Ashcroft, 364 F.3d 1172, 1177-78

(9th Cir. 2004). Substantial evidence supports the BIA's finding that

Haghighatpour's religion-based claim for withholding of removal fails to find

support in the record. We therefore deny the petition with regard to the religious

persecution.

               c.   Political Opinion or Membership in a Particular Social

Group. Haghighatpour's final basis for seeµing withholding of removal from

Germany is his contention that, if returned, he will more liµely than not be

persecuted by Iranian agents because of his former membership in SAVAK. The


                                          7
BIA never addressed whether these facts established the requisite probability of

persecution. Instead, the BIA asserted only that Haghighatpour 'traveled outside

Germany many times, yet did not seeµ asylum elsewhere, undermin[ing] his claim

that he is fearful of returning.'

       We cannot uphold this ruling. There is 'no subjective component' to a

withholding claim, INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987), so any

inference about Haghighatpour's subjective fear does not matter. Moreover, the

record provides no support for the BIA's assertion that Haghighatpour had

'traveled outside of Germany many times.' (Emphasis added). The record

contains a reference to only one time that Haghighatpour left and returned to

Germany in the 19 years he lived there: his trip to London to meet his future wife.

       Because the BIA applied an incorrect standard and misstated the record in

doing so, we grant the petition with regard to the withholding of removal claim as

it relates to persecution by Iranian agents. On remand, the BIA must address

whether Haghighatpour would more liµely than not be persecuted by Iranian agents

if returned to Germany.

       5.     Haghighatpour's Convention Against Torture (CAT) claim was

premised on the possibility that Germany would deport him to Iran and on his

inability to worµ in his chosen field in Germany. The inability to find employment


                                          8
in one's chosen field does not amount to torture. If, however, on remand, the BIA

finds that once removed to Germany, Haghighatpour is more liµely than not to be

further removed to Iran, it should determine whether he is therefore entitled to

CAT relief.

      6.      As to his due process claim, Haghighatpour fails to establish any

prejudice from any error that may have occurred with regard to transcription or

failure to testify to the full extent of abuse by his wife. See Larita-Martinez v. INS,

220 F.3d 1092, 1095 (9th Cir. 2000). Nor does the record reveal bias by the IJ

constituting a violation of due process.

      7.      Finally, the BIA did not abuse its discretion in denying

Haghighatpour's motion to reopen. Haghighatpour has not demonstrated that his

affidavit and the letters from his friends could not have been submitted earlier. See

8 C.F.R. y 1003.2(c)(1). Moreover, nothing in the State Department Report or the

Amnesty International article suggest that the information contained therein was

new or represented changed conditions in Germany. See id.

                                     Conclusion

      In sum: We grant Haghighatpour's petition in part and remand to the BIA to

(1) address Haghighatpour's claim for asylum from Germany on the merits; (2)

develop the record with respect to whether Haghighatpour received an offer of


                                           9
indefinite residency in Germany and reconsider the question of firm resettlement in

light of the standards set forth in Maharaj and Matter of A-G-G-; and (3) determine

whether Haghighatpour will more liµely than not be persecuted in Germany by

Iranian agents whom the German police are unable or unwilling to control.

      We deny Haghighatpour's petitions as to his claims regarding (1)

cancellation of removal; (2) withholding from Germany on the basis of anti-

foreigner violence and religion; (3) CAT; (4) due process; and (5) the motion to

reopen.

      This panel retains jurisdiction over all further appeals in this matter. Each

party to bear its own costs on appeal.

      Petitions GRANTED in part, DENIED in part and REMANDED.




                                         10
