           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 14, 2009

                                     No. 09-60376                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



FAROOQ AHMED

                                                   Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

                                                   Respondent




                        Petition for Review of an Order of the
                            Board of Immigration Appeals
                                      A074159584


Before BENAVIDES, PRADO, SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Farooq Ahmed, a native and citizen of Pakistan, seeks review of the Board
of Immigration Appeals’ (BIA) decision to affirm the Immigration Judge’s (IJ)
denying Ahmed’s motion to reopen the removal proceedings based on his recent
diagnosis as AIDS/HIV positive. Ahmed did not petition this Court for review
of the BIA’s removal decision on December 8, 2008. Thus, we only consider the
BIA’s April 20, 2009 decision to deny Ahmed’s motion to reopen.


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 09-60376

      This Court has jurisdiction over this petition pursuant to INA § 242(a)(1),
8 U.S.C. § 1251(a)(1). A motion to reopen must establish sufficient facts as to
show a prima facie case of eligibility for the relief sought. INS v. Doherty, 502
U.S. 314, 323 (1992); Bahramnia v. INS, 782 F.2d 1243, 1245 (5th Cir. 1986).
A denial for a motion to reopen is reviewed under the deferential abuse of
discretion standard. Zhao v. Gonzales, 404 F.3d 295, 302-03 (5th Cir. 2005). We
have interpreted this standard to uphold the denial unless the decision was
capricious, racially invidious, utterly without foundational evidence, or so
aberrational as to be arbitrary and not a rational interpretation. See Doherty,
502 U.S. at 323; Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993).
      Ahmed contends that it was abuse of discretion for the BIA to deny his
motion to reopen. Ahmed argues that changes in his personal life and within
Pakistan warranted his new asylum application, including his recent diagnosis
as HIV positive. In considering these claims, the BIA found by judicial notice
that the State Department’s 2008 Human Rights Report showed no observed
persecution based on HIV/AIDS status from government services or society in
general, and that a slow, positive change was also occurring even though some
discrimination remains. See Eduard v. Ashcroft, 379 F.3d 182, 187 n.4 (5th Cir.
2004) (stating that discrimination does not equate to persecution for purposes
of asylum or withholding of removal). While Ahmed introduced several pieces
of evidence, none indicate that persecution of HIV positive individuals is
occurring. Moreover, Ahmed’s lab reports only show that antibodies to HIV may
be present, and he did not present evidence to establish that he has AIDS.
Ahmed cannot establish a prima facie case for asylum or withholding of removal
to merit reopening. The BIA, however, did make evidentiary findings that
showed individuals who have AIDS or are HIV positive do not face persecution.
Given the fact finding made by the BIA, its decision was not arbitrary or an
abuse of discretion. See Mai v. Gonzalez, 473 F.3d 162, 164 (5th Cir. 2006)

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(noting the abuse of discretion standard requires the BIA not to act in an
arbitrary or capricious manner and reversing for failure to support its decision
and reasoning by a foundation of evidence).
      Ahmed also alleges other errors in the BIA’s findings on Ahmed’s
homosexuality and eligibility for asylum under his conditions and circumstances.
We are without jurisdiction, however, to review these discretionary matters as
Ahmed failed to file a petition for review by this Court within the required 30
day period. See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1).
      Accordingly, Ahmed’s petition to reopen is DENIED.




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