                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           AUG 10 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
ABDULLAH MOHAMMED NASSER                         Nos. 12-71397
AL-FAKIH,                                             12-73046

              Petitioner,                        Agency No. A096-151-972

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                      On Petitions for Review of Orders of the
                          Board of Immigration Appeals

                        Argued and Submitted June 16, 2016
                             San Francisco, California

Before:       SCHROEDER, TASHIMA, and OWENS, Circuit Judges.

      Abdullah Mohammed Nasser Al-Fakih petitions this Court for review of two

decisions of the Board of Immigration Appeals (the “Board”). In 2002, Al-Fakih

applied for asylum, withholding of removal, and relief under the Convention

Against Torture. An immigration judge (“IJ”) denied his application, and the



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Board affirmed in a per curiam decision. Al-Fakih did not petition for review of

that decision.

      In 2011, Al-Fakih moved to reopen those proceedings, claiming that

circumstances in Yemen had changed such that he was entitled to relief. The

Board denied the motion and Al-Fakih petitioned our Court for review. While that

petition was pending, Al-Fakih filed a second motion with the Board to reconsider

its denial of the motion to reopen. The Board denied the motion to reconsider and

Al-Fakih again petitioned for review. We have jurisdiction over the consolidated

petitions under 8 U.S.C. § 1252(a), and we deny the petitions.

      Our review is for abuse of discretion and is limited to those grounds

explicitly relied upon by the Board. Najmabadi v. Holder, 597 F.3d 983, 986-87

(9th Cir. 2010); Morales Apolinar v. Mukasey, 514 F.3d 893, 895 (9th Cir. 2008).

      1.     Motion to Reopen

      Although a petitioner typically must file a motion to reopen within 90 days

of the final decision to be reopened, the time limit may not apply where the motion

is “based on changed circumstances.” 8 C.F.R. § 1003.2(c)(2), (c)(3)(ii). To prove

changed circumstances, a petitioner must submit evidence that “is material and was

not available and could not have been discovered or presented at the previous

hearing . . . .” 8 C.F.R. § 1003.2(c)(3)(ii). The Board determined that Al-Fakih


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could not prove changed circumstances because his evidence (1) was not

sufficiently individualized and therefore not material, and (2) did not demonstrate a

change in his ability to relocate elsewhere in the country.

      Generalized evidence of ongoing political turmoil cannot, by itself, entitle a

petitioner to relief. Najmabadi, 597 F.3d at 989. Al-Fakih failed to provide any

evidence tying Yemen’s increasingly violent civil struggles to his own expectation

of future persecution, either by a rival family or the government. The Board did

not abuse its discretion in denying the motion to reopen on this ground. See id.

      With respect to internal relocation, the Board concluded that Al-Fakih failed

to show changed circumstances because Al-Fakih’s sons sent him a letter

indicating that they had relocated to a new city in Yemen. It is the petitioner’s

burden to provide evidence of changed circumstances. See 8 C.F.R. §

1003.2(c)(1). There is no indication in the record that Al-Fakih’s sons have been

threatened since their relocation, nor is there any indication that Al-Fakih could not

also relocate safely. The Board did not abuse its discretion.

      Al-Fakih argues that the Board erred in its relocation analysis by failing to

discuss explicitly each of the factors described in 8 C.F.R. § 1208.13(b)(3). But

the regulation cautions that the “factors may, or may not, be relevant, depending on

all the circumstances of the case, and are not necessarily determinative of whether


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it would be reasonable for the applicant to relocate.” Id. Thus, the Board has

broad discretion when deciding whether relocation is possible; it need not discuss

each factor individually. See Najmabadi, 597 F.3d at 990.

      2.     Motion to Reconsider

      In his motion to reconsider, Al-Fakih primarily challenged the IJ’s findings

of fact and conclusions of law at the 2003 hearing. Any challenge to that decision,

however, should have been made on petition for review of the Board’s 2004

decision, which reviewed that IJ decision. But Al-Fakih did not petition for review

of the Board’s 2004 decision. Any motion to reconsider the 2004 decision is now

time barred. 8 C.F.R. § 1003.2(b)(1). The Board did not abuse its discretion when

it denied the motion to reconsider on this ground.

      Al-Fakih also submitted new evidence in support of his motion to

reconsider. Thus, the Board alternatively construed the motion as a motion to

reopen. Compare 8 C.F.R. § 1003.2(b)(1) with id. § 1003.2(c)(1). The Board

found that the new evidence suffered from the same deficiencies as did the

evidence Al-Fakih submitted in support of his first motion to reopen: It merely

addressed the existence of generalized civil strife in Yemen, without showing how

those circumstances affected Al-Fakih’s eligibility for relief. Thus, the Board




                                          4
acted within its discretion to deny the motion as time barred for the same reasons

that it denied Al-Fakih’s first motion to reopen. 8 C.F.R. § 1003.2(c)(2).

      3.     Humanitarian Asylum

      “Under the humanitarian exception, a victim of past persecution may be

granted asylum even without a fear of related future persecution, if the applicant

establishes . . . compelling reasons for being unwilling or unable to return because

of the severity of the past persecution . . . .” Mohammed v. Gonzales, 400 F.3d

785, 801 (9th Cir. 2005) (citing 8 C.F.R. § 1208.13(b)(1)(iii)(A)). To be eligible

for humanitarian asylum, the petitioner must show that he or she suffered past

persecution on a protected ground. See id.

      The Board construed Al-Fakih’s argument for a grant of humanitarian

asylum as a request for sua sponte reopening and denied the request. The Board

“may at any time reopen . . . any case in which it has rendered a decision.” 8

C.F.R. § 1003.2(a). This court, however, does not have jurisdiction to review the

Board’s denial of a motion to reopen sua sponte. See Ekimian v. INS, 303 F.3d

1153, 1159–60 (9th Cir. 2002).1




      1
              Because we lack jurisdiction to review the Board’s refusal to reopen
sua sponte, we cannot consider Al-Fakih’s contention that the Board committed
legal error in concluding that Al-Fakih did not suffer past persecution.
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      Al-Fakih argues that the Board misconstrued his motion, explaining that the

motion never invoked the Board’s authority to reopen a proceeding sua sponte.

Even if the Board improperly construed Al-Fakih’s request, however, the Board

broadly rejected Al-Fakih’s changed circumstances argument elsewhere in its

decision. The Board stated that “[a]lthough the respondent also references ongoing

political turmoil, civil strife, and terrorism in Yemen, he has not meaningfully

explained how any of these ongoing issues are material to his eligibility for the

requested forms of relief.” That is, Al-Fakih’s evidence was not sufficient to

demonstrate changed circumstances as to any form of relief, including

humanitarian asylum. His claim was therefore time barred. As explained above,

this conclusion was not an abuse of discretion.

      For the foregoing reasons, Al-Fakih’s petition for review is

      DENIED.




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