                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 03 2011

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




                            FOR THE NINTH CIRCUIT



MANJULA DEVI,                                     No. 07-72228

              Petitioner,                         Agency No. A079-245-703

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

              Respondent.



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

                      Argued and Submitted February 17, 2011
                             San Francisco, California

Before: SCHROEDER and THOMAS, Circuit Judges, and ADELMAN, District
Judge.**

       Manjula Devi, a native and citizen of Fiji, petitions for review of an order of

the Board of Immigration Appeals (“BIA”) denying her motion to reopen

proceedings for further consideration of her applications for asylum, withholding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Lynn S. Adelman, District Judge for the United States
District Court for the Eastern District of Wisconsin, sitting by designation.
of removal, and protection under the Convention Against Torture (“CAT”) on the

basis of changed country conditions. Devi previously asserted past persecution

and a fear of future persecution on account of her Indo-Fijian ethnicity and sought

to reopen based on a military coup. The BIA concluded that there were changed

conditions, but that they did not materially affect Devi’s eligibility for relief. The

BIA also held that Devi did not qualify for relief under 8 C.F.R.

§ 1208.13(b)(1)(iii)(B), which provides relief if there is a reasonable possibility of

suffering “other serious harm” if returned to the country of origin.

      Petitioner argues that the BIA erred in concluding that she failed to establish

changed country conditions which materially affect her eligibility for asylum,

withholding of removal, and relief under CAT. The BIA did not err. The evidence

provided by Petitioner reflected general political unrest but did not show that Indo-

Fijians were being persecuted or that their life or freedom were being threatened

because of their ethnicity. See 8 U.S.C. § 1101(a)(42)(A) (explaining that an

asylum applicant must be unable or unwilling to return to her country of nationality

“because of persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion”)

and 8 U.S.C. § 1231(b)(3) (providing for withholding of removal if it is more

likely than not that “the alien’s life or freedom would be threatened in [the country


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of removal] because of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion”). Additionally, Petitioner’s new

evidence of a political power struggle does not demonstrate “that it is more likely

than not that . . . she would be tortured if removed to” Fiji. 8 C.F.R.

§ 208.16(c)(2).

      As Petitioner conceded during oral argument, 8 C.F.R.

§ 1208.13(b)(1)(iii)(B) applies only to applicants who have established past

persecution and where the presumption of future persecution has been rebutted by

changed conditions or the possibility of internal relocation. See Belishta v.

Ashcroft, 378 F.3d 1078, 1081 (9th Cir. 2004) (holding that 8 C.F.R.

§ 1208.13(b)(1)(iii)(B) “provides a second avenue of relief for victims of past

persecution whose fear of future persecution on account of a protected ground has

been rebutted by evidence of changed country conditions or of safe harbors within

his or her home country”).

      Petition DENIED.




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