                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 30 2011

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




                             FOR THE NINTH CIRCUIT



FAIZUN FARNAZ ALI,                                Nos. 05-70814
                                                       07-72495
               Petitioner,
                                                  Agency No. A095-583-190
  v.

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

               Respondent.



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

                             Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

       In these consolidated petitions, Faizun Farnaz Ali, a native and citizen of

Fiji, petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing her appeal from an immigration judge’s (“IJ”) decision denying her

application for asylum, withholding of removal, and protection under the


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (“CAT”) (No. 05-70814), and the BIA’s denial of her

motion to reopen (No. 07-72495). Our jurisdiction is governed by 8 U.S.C. §

1252. We review for substantial evidence findings of fact, Nagoulko v. INS, 333

F.3d 1012, 1015 (9th Cir. 2003), and for abuse of discretion the denial of a motion

to reopen, Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004). In No. 05-70814,

we deny in part and dismiss in part the petition for review. In No. 07-72495, we

deny in part and dismiss in part the petition for review.

       Substantial evidence supports the agency’s conclusion that Ali’s experiences

in Fiji, including harassment and witnessing a robbery, did not rise to the level of

persecution. See Halim v. Holder, 590 F.3d 971, 975-76 (9th Cir. 2009).

Substantial evidence also supports the agency’s finding that Ali failed to

demonstrate a well-founded fear of future persecution. See Molina-Estrada v. INS,

293 F.3d 1089, 1096 (9th Cir. 2002) (when a petitioner has not established past

persecution, the agency may “rely on all relevant evidence in the record, including

a State Department report, in considering whether the petitioner has demonstrated

that there is good reason to fear future persecution.”). Accordingly, Ali’s asylum

claim fails.




                                           2                                    05-70814
       Because Ali failed to establish eligibility for asylum, she necessarily failed

to meet the more stringent standard for withholding of removal. See Zehatye v.

Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).

       We lack jurisdiction to review Ali’s CAT claim because it was not exhausted

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

       Finally, the BIA did not abuse its discretion in denying Ali’s motion to

reopen because it was untimely, see 8 C.F.R. § 1003.2(c)(2), Ali failed to

demonstrate changed country conditions to qualify for the regulatory exception to

the time limit, see 8 C.F.R. § 1003.2(c)(3)(ii), and Ali did not show prima facie

eligibility for the relief sought, see INS v. Abudu, 485 U.S. 94, 104-05 (1988) (the

BIA may deny a motion to reopen for failure to establish a prima facie case for the

underlying relief sought); see also Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.

2002) (the BIA’s denial of a motion to reopen shall be reversed only if it is

arbitrary, irrational, or contrary to the law).

       We lack jurisdiction to review the BIA’s decision not to invoke its sua

sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v.

INS, 303 F.3d 1153, 1159 (9th Cir. 2002). If we had jurisdiction to review the

BIA’s decision, we would find no abuse of discretion.



                                             3                                    05-70814
     No. 05-70814: PETITION FOR REVIEW DENIED in part;

DISMISSED in part.

     No. 07-72495: PETITION FOR REVIEW DENIED in part;

DISMISSED in part.




                               4                         05-70814
