                                                                                FILED
                            NOT FOR PUBLICATION
                                                                                 JUN 17 2020

                     UNITED STATES COURT OF APPEALS                          MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ABDUL BASED,                                      No. 18-73442

              Petitioner,                         Agency No. A064-302-014

  v.
                                                  MEMORANDUM *
WILLIAM P. BARR, Attorney General,

              Respondent.


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

                              Submitted June 12, 2020**
                              San Francisco, California

Before: TASHIMA and HUNSAKER, Circuit Judges, and SELNA, Senior District
Judge***




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. 34(a)(2).
       ***
              The Honorable James V. Selna, Senior District Judge for the United
States District Court for the Central District of California, sitting by designation.
                                           1
      Abdul Based (“Based”), a native and citizen of Afghanistan, petitions for

review of the Board of Immigration Appeal’s (“BIA”) decision denying his

untimely motion to reopen removal proceedings. We have jurisdiction under 8

U.S.C. § 1252. See Nasrallah v. Barr, 2020 WL 2814299, at * 8 (U.S. June 1,

2020) (“§§ 1252 (a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s

factual challenges to a CAT order.”). We review the BIA’s legal determinations de

novo, its factual findings for substantial evidence, and its denial of a motion to

reopen for abuse of discretion, see Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir.

2016), and we deny the petition for review.

      To obtain reopening, Based must establish that the evidence he offered was

material, was not available, and could not have been discovered or presented at his

original hearing. See 8 C.F.R. § 1003.2(c)(1). A court will uphold the denial of a

motion to reopen unless the decision is “arbitrary, irrational or contrary to law.”

Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (quotation marks and citation

omitted); see also Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir. 2014).

      Based contends that the BIA erred in rejecting his allegedly new evidence,

which would support relief under the Convention Against Torture (“CAT”).

Specifically, Based argues that the BIA did not consider an affidavit he presented

from his brother, Abdul Bayes, establishing that he would be subject to torture if


                                           2
returned to Afghanistan. The BIA, according to Based, erroneously concluded that

this information was previously available. In particular, Based argues that the

timing of his brother’s statement may have been in reference to the Islamic

calendar, rather than the Gregorian calendar. This is a new argument; Based did

not present it to the BIA. Therefore, Based failed to exhaust it and the BIA did not

abuse its discretion in failing to anticipate an argument that was not before it.

Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).

      In a September 20, 2018, statement, which is unsworn, Bayes indicates that

“last year,” he saw Based “on the site of [Special Immigrant Visa], many people

from the neighborhood he use[d] to live in expressed that if they were to see him

again they would harm him.” Bayes thus asserted that Based would be in danger if

he returned to Afghanistan. Based points to this evidence to argue that it “speaks

to the fact that once his information was on the SIV,” his “crime and association

with the US Army would be more widely known as evidenced by threats made on

[his] life to his brother by individuals living in Kabul.”

      The BIA did not abuse its discretion in denying Based’s motion to reopen.

In its November 28, 2018, decision, the BIA considered Bayes’ affidavit and

reasonably concluded that this evidence was available in 2017. Based failed to

show that his brother’s statement included material evidence that was previously


                                           3
unavailable, and that this evidence could not have been presented during his

February 22, 2018, merits hearing. See Toufighi v. Mukasey, 538 F.3d 988, 996

(9th Cir. 2008); see also Fernandez v. Gonzales, 439 F.3d 592, 599 (9th Cir. 2006).

      Finally, Based does not contest the BIA’s conclusion regarding the other

three affidavits he presented, nor does Based contest the BIA’s conclusion that his

motion was time-barred. Thus, any arguments on these issues are waived. Husyev

v. Mukasey, 528 F.3d 1172, 1183 (9th Cir. 2008).

      Petition for review DENIED.




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