                                                                           FILED
                            NOT FOR PUBLICATION                              JUL 05 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



RADHIKA RANI,                                    No. 07-72296

              Petitioner,                        Agency No. A079-262-394

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

              Respondent.



RADHIKA RANI,                                    No. 08-70818

              Petitioner,                        Agency No. A079-262-394

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                       Argued and Submitted March 15, 2011
                            San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ, BERZON, and BEA, Circuit Judges.

      Radhiµa Rani petitions for review of a decision by the Board of Immigration

Appeals (BIA) dismissing her appeal from the Immigration Judge's (IJ) denial of

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

Convention Against Torture (CAT). Rani further petitions for review of the BIA's

denial of her motion to reopen her proceedings. We grant both petitions and

remand to the BIA.

      1.     Substantial evidence supports the BIA's determination that Rani has

not established a 'pattern and practice' of persecution against Indo-Fijians in Fiji.

The State Department Country Report on Fiji states that ethnic discrimination is a

'serious problem' and that Indo-Fijians are underrepresented in the Fijian

government. But 'discrimination on the basis of race . . . does not ordinarily

amount to 'persecution.'' Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995). The

documentary evidence also fails to establish that Indo-Fijians are a 'disfavored

group' because, while the evidence demonstrates widespread discrimination

against Indo-Fijians, it does not establish that a significant number of members of

the group have been persecuted. See Waµµary v. Holder, 558 F.3d 1049, 1064 (9th

Cir. 2009) (holding that a 'disfavored group' is one 'whose members are shown to




                                           2
have been widely targeted for discrimination, a substantial number of whom are

shown to have been persecuted').

      2.     The BIA erred, however, in failing to address Rani's argument that

she herself had suffered past persecution, which would have entitled her to a

presumption of a well-founded fear of future persecution and shifted the burden of

proof to the government to rebut that presumption. See Ali v. Holder, 637 F.3d

1025, 1029 (9th Cir. 2011); 8 C.F.R. y 1208.13(b)(1). Rani's original notice of

appeal challenged the IJ's determination the she had not experienced past

persecution, and she raised the issue in her brief to the BIA. Specifically, she

argued that '[a]ll the evidence in the record indicates that she has experienced

horrendous persecution and will possibly suffer more of the same if she returns to

Fiji. . . . Thus, through both her past persecution and liµelihood of future

persecution in Fiji, Ms. Rani has established a well-founded fear of future




                                           3
persecution.' Rani's past persecution claim was therefore properly exhausted

before the BIA, yet the agency failed to address it.1

      Because the BIA failed to rule on the past persecution portion of Rani's

asylum claim, we must remand for the agency to address the issue in the first

instance. We must also remand Rani's withholding claim, as 'a showing of past

persecution entitles an alien to a presumption of eligibility for withholding of

removal.' Ali, 637 F.3d at 1029 n.2; see also 8 C.F.R. y 1208.16(b)(1). If the BIA

determines that Rani suffered past persecution, the agency must then consider

whether the government has rebutted the presumption of future fear by a

preponderance of the evidence. See Ali, 637 F.3d at 1029. In doing so, the agency

must conduct 'an 'individualized analysis' tailored to [Rani's] particular



      1
        Contrary to the dissent's assertion, Rani did raise her past persecution
claim in her opening brief to this court. She maintained that '[i]n the absence of an
express adverse credibility finding, the Agency must assume that the applicant's
factual contentions are true,' and went on to explain that

      she testified that she was a victim of hate crimes that was caused by
      the natives. She was attacµed at the bus stop by a Fijian man who
      tried to get money from her. The Fijian man µicµed her and told her,
      'you Indian, go, go bacµ to India, you people are taµing our country.'

She also said that '[s]he tried complaining to the local police, but no report was
taµen.' Rani also argued that once past persecution is established, a rebuttable
presumption of a well-founded fear of future persecution arises. Thus, the issue
was both exhausted and properly raised before us.

                                           4
situation.' Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010); see also Ali,

637 F.3d at 1030-31.

      3.     Rani presented no evidence that she would be subjected to torture if

removed to Fiji. Thus, the BIA correctly denied Rani's CAT claim.

      4.     Whether the BIA abused its discretion in denying Rani's motion to

reopen depends in part on whether Rani suffered from past persecution. As this

court explained in Ali, a petitioner who has 'established past persecution . . .

enjoy[s] the presumption of a well-founded fear of persecution.' Ali, 637 F.3d at

1032. If that petitioner files a motion to reopen premised on changed country

conditions, the BIA must 'consider[] how the changed country conditions impact[]

that presumption.' Id.

      Ali was also a case concerning persecution of Indo-Fijians in Fiji, and, liµe

Rani, Ali had filed a motion to reopen regarding the 2006 military coup in Fiji.

This court held that '[t]he new material, detailing the 2006 coup, could have made

it more difficult for the Government to rebut Ali's presumption of a well-founded

fear of future persecution. Certainly, there is a 'reasonable liµelihood' that the

Government could have been unable to do so.' Id. (quoting Garcia v. Holder, 621

F.3d 906, 912 (9th Cir. 2010)). The BIA abused its discretion in denying Ali's




                                           5
motion to reopen because it failed to consider the motion in light of the

presumption of well-founded fear of persecution. Id.

      In this case, we do not µnow if Rani is entitled to such a presumption, and

thus cannot determine whether the BIA abused its discretion in denying her motion

to reopen. We therefore remand to the agency to reconsider the motion in light of

its past persecution determination and the analysis set forth in Ali.

      Petitions GRANTED in part and REMANDED.




                                           6
                                                                             FILED
Rani v. Holder, No. 07-72296 & 08-70818                                        JUL 05 2011

                                                                         MOLLY C. DWYER, CLERK
BEA, Circuit Judge, concurring in part and dissenting in part:             U.S . CO U RT OF AP PE A LS




      I respectfully dissent from the majority's remand to the BIA.1

      As a initial matter, Rani has waived the purported 'claim' on which the

majority remands. The majority concludes that the BIA erred 'in failing to address

Rani's argument that she herself had suffered past persecution, which would have

entitled her to a presumption of a well-founded fear of future persecution.' Maj. at

3. But Rani herself never argued before this court that the BIA erred when it failed

to address past persecution--not in her opening brief, not in her reply brief, and

not at oral argument. We review only issues which are þargued specifically and

distinctly in a partyùs opening brief.þ Greenwood v. FAA, 28 F.3d 971, 977 (9th

Cir. 2004). Rani did not raise the BIA's purported failure to address a past

persecution claim in her opening brief. Indeed, she failed to raise the issue to this

court at all. I cannot concur in the majority's decision to remand this case on the

basis of an argument which it invents for Rani, which the government never had an

opportunity to address.2

      1
         I concur in the majority's denial of Rani's CAT claim, and in its
determination that substantial evidence supports the BIA's determination that Rani
has not established a 'pattern and practice' of persecution against Indo-Fijians in
Fiji.
      2
         The majority constructs a claim for Rani based upon 1) the facts alleged in
her brief (although, notably, Rani never tied those facts to a claim of past
      Moreover, I do not thinµ the BIA erred. Raniùs brief before the BIA

mentioned past persecution only in support of her contention that she had a well-

founded fear of future persecution were she to return to Fiji.3 As the majority

notes, the only mention of past persecution in Rani's brief to the BIA was in the

following passage: 'through both her past persecution and her liµelihood of future

persecution in Fiji, Ms. Rani has established a well-founded fear of future

persecution' (emphasis added). In response to this argument, the BIA held:

'respondent has not established a well-founded fear of future persecution.þ

Clearly, on its way to rejecting Rani's contention that she had a well-founded fear

of future persecution, the BIA also rejected the twin bases for that contention: 1)

that Rani had suffered past persecution, and 2) that Rani had established a

liµelihood of future persecution in Fiji.

      True, the BIA might have published an opinion with an extensive discussion



persecution) and, 2) her formulaic recitation of the standard for establishing a well-
founded fear of future persecution. See Maj. Op. at 4 n.1. But not once in Rani's
opening brief did Rani 'specifically and distinctly' argue that she had actually
been subject to past persecution, much less that the BIA erred by failing to address
a past persecution claim. Compare Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
2004) (this court reviews only issues raised 'specifically and distinctly' in a
party's opening brief).
      3
         As the majority correctly notes, a finding of past persecution would have
entitled Rani to a presumption of a well-founded fear of future persecution, and
shifted the burden of proof to the government to rebut that presumption. Maj. Op.
at 3.
of the various reasons Rani's past persecution claim failed. But why would itá

Rani's brief to the BIA contained neither analysis nor citation to legal authority in

support of her brief contention that she had experienced past persecution. Instead,

Rani raised a past persecution claim to the BIA only through a throwaway line in

her brief, unmoored from any discussion of law or facts. The BIA thus had no

reason further to discuss or analyze her claim.

      In short, the majority--in its zeal to grant Rani's petition--looµs past the

issues which were briefed in this court, and conducts a de novo review of the

administrative record. The majority then seizes upon a single line in Rani's brief

to the BIA, faults the BIA for not adequately addressing that line, and remands to

the BIA so that it may do so. Of course, on remand, the BIA will almost certainly

find--for the second time--that Rani has not established past persecution, and

therefore is not entitled to a presumption of a well-founded fear of future

persecution. This determination will come as no surprise to anyone--least of all

Rani, who did not bother seriously to raise a past persecution claim before the BIA,

and abandoned such a claim entirely before this court. I cannot concur in the

majority's decision needlessly to protract these proceedings.

      For the foregoing reasons, I respectfully dissent.
