                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 15 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ABDUL SAMAD SHAH,                                No. 06-71406

              Petitioner,                        Agency No. A070-344-113

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

              Respondent.



ABDUL SAMAD SHAH,                                No. 09-73132

              Petitioner,                        Agency No. A070-344-113

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                           Submitted August 31, 2011 **
                             San Francisco, California

Before: BERZON and BYBEE, Circuit Judges, and GRAHAM, Senior District
Judge.***


      Abdul Samad Shah, a native and citizen of Fiji, petitions this court for

review of the Board of Immigration Appeals (BIA)’s decisions denying as

untimely his motion to reopen, 09-73132, and affirming the order of the

Immigration Judge (IJ) denying asylum, withholding of removal, and relief under

the Convention Against Torture (CAT), 06-71406. We have jurisdiction pursuant

to 8 U.S.C. § 1252. In 06-71406, we deny the petition for review, and in 09-

73132, we dismiss the petition for review.

I. 06-71406

      To reverse the decision of the BIA, we must find that the evidence presented

by Shah in his asylum application and proceeding compels the conclusion that he

suffered past persecution at the hands of native Fijians on account of his Indian

ethnicity or some other protected ground. See INS v. Elias-Zacarias, 502 U.S. 478,



        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable James L. Graham, Senior U.S. District Judge for the
Southern District of Ohio, sitting by designation.

                                          2
481 & n.1 (1992); see also Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995). Shah

is a Fijian citizen of Indian ethnicity. In his asylum proceeding, Shah claimed that

he was attacked by a native Fijian criminal and a crowd aiding that criminal; that

people (presumably native Fijians) threw stones at his house; and that native

Fijians would scream and throw stones when his family attempted to go to mosque.

      These facts do not compel a finding of persecution. Shah was a police

officer attempting to arrest the Fijian criminal when he was attacked. Another

police officer, a native Fijian, was also attacked in the incident. There is no

indication that the attack on Shah was based on his ethnicity. While the other

incidents to which Shah testified may evidence discrimination and harassment,

they do not compel a finding of persecution. See Prasad, 47 F.3d at 340.

      Because Shah did not establish past persecution, he is not entitled to a

presumption of a well-founded fear of future persecution. See 8 C.F.R.

§ 208.13(b)(1); Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004). Shah

makes no independent argument that he fears future persecution. Accordingly, the

IJ did not err by denying his application for asylum. See Lanza v. Ashcroft, 389




                                           3
F.3d 917, 925 (9th Cir. 2004) (reviewing decision of the IJ when the BIA affirms

IJ’s decision without opinion).1

      Shah’s second claim, that the BIA should have remanded his case to the IJ to

allow him to apply for cancellation of removal using his wife as a qualifying

relative, is moot. The agency has since denied Shah’s wife’s application for

cancellation of removal, and this court has dismissed her petition for review. See

Shah v. Holder, 396 Fed. App’x 434, 435 (9th Cir. 2010).

      We lack jurisdiction to review Shah’s contention that the BIA should have

remanded his case to allow him to apply for cancellation of removal using his son

as a qualifying relative, because Shah failed to exhaust this contention before the

BIA. See Tall v. Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008).

II. 09-73132

      The BIA did not abuse its discretion in denying Shah’s motion to reopen as

untimely. Shah filed the motion more than 90 days after the agency issued its final

administrative order, and he did not establish eligibility for an exemption from the

90-day deadline. See 8 C.F.R. § 1003.2(c)(2).




      1
         Because we deny Shah’s petition as it concerns his request for asylum, we
need not address his motion to add his wife, Tahira Bibi Shah, to the caption for
this petition. The motion is dismissed.

                                          4
      We lack jurisdiction to consider Shah’s claim that the BIA should have

exercised its sua sponte authority to reopen his case. Ekimian v. INS, 303 F.3d

1153, 1159 (9th Cir. 2002). Moreover, Shah did not exhaust this request before the

agency.

      In No. 06-71406: PETITION FOR REVIEW DENIED.

      In No. 09-73132: PETITION FOR REVIEW DISMISSED.




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