                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 14 2010

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




                            FOR THE NINTH CIRCUIT



MOHAMED ABDULLAH HASSAN,                         No. 06-74840

              Petitioner,                        Agency No. A095-405-793

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

              Respondent.



MOHAMED ABDULLAH HASSAN,                         No. 07-73583

              Petitioner,                        Agency No. A095-405-793

  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 Ninth Circuit Rule 36-3.
                           Submitted December 9, 2010 **
                             San Francisco, California

Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.

      Mohamed Abdullah Hassan, a native and citizen of Yemen, petitions for

review of the decisions of the Board of Immigration Appeals dismissing his appeal

of the denial of his application for asylum, withholding of removal, and relief

under the Convention Against Torture, as well as denying his motion to reopen.

      Hassan’s asylum application was untimely. See 8 U.S.C. § 1158(a)(2)(B)

(requiring filing within one year after arrival). He contends that his father’s death

constitutes a changed or extraordinary circumstance excusing his tardy filing. See

8 U.S.C. § 1158(a)(2)(D). But Hassan asserted essentially the same case for

asylum on an earlier application that preceded the death, and he admitted that he

had decided to stay in the United States ten months prior to learning of the death.

Substantial evidence supports the conclusion that the death was not a changed or

extraordinary circumstance that would excuse his untimely filing. See Dhital v.

Mukasey, 532 F.3d 1044, 1050 (9th Cir. 2008). Furthermore, Hassan’s

unexplained eleven month delay in filing the application after learning of his

father’s death was not reasonable. See Husyev v. Mukasey, 528 F.3d 1172, 1181


        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                           2
(9th Cir. 2008) (“[W]here there is no explanation for the petitioner’s delay, [the

petitioner’s] 364-day wait after his lawful nonimmigrant status expired is not a

reasonable period.” (footnote omitted) (emphasis in original)). Hassan is not

eligible to seek relief on grounds of asylum.

      We review for substantial evidence the denial of Hassan’s applications for

withholding of removal and relief under the Convention Against Torture. See Lin

v. Holder, 610 F.3d 1093, 1097–98 (9th Cir. 2010). Hassan adduced evidence that

he had been a member and functionary of the Yemeni socialist party. But although

certain of Hassan’s relatives were killed because of political activities, and he

showed that he had been the subject of Yemeni criminal investigations, he

presented no evidence that he would be specially targeted for persecution on

account of his past political activities. This, together with evidence adduced by the

Attorney General that socialist party members are not ordinarily persecuted in

Yemen today, constitutes substantial evidence supporting the conclusion that

Hassan failed to establish a likelihood of persecution or torture. See id. “Ordinary

prosecution for criminal activity is not persecution ‘on account of’ a protected

ground.” Id. at 1097 (citing Dinu v. Ashcroft, 372 F.3d 1041, 1043–44 (9th Cir.

2004)). Nor do past criminal investigations warrant a presumption of future

persecution.


                                           3
      Finally, we review the denial of Hassan’s motion to reopen for abuse of

discretion. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). Hassan’s

motion was untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i) (allowing only 90 days for

filing motions to reopen). Although Hassan seeks equitable tolling, he has not

shown that the tardiness of his motion was caused by his counsel’s ineffective

representation, rather than his own lack of diligence. See Socop-Gonzalez v. INS,

272 F.3d 1176, 1193 (9th Cir. 2001) (en banc) (permitting equitable tolling in only

limited circumstances). The BIA, noting that counsel had told Hassan that time

was of the essence in filing a motion to reopen, and that this advice had gone

unheeded by Hassan, did not err in concluding that Hassan failed to act with due

diligence. We conclude the agency did not abuse its discretion in denying his

motion to reopen.

      PETITION DENIED.




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