                                                                           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                            NOT FOR PUBLICATION                             NOV 26 2012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



      1
             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.




                                           3
      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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