                                                                           FILED
                            NOT FOR PUBLICATION                             APR 30 2010

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




                            FOR THE NINTH CIRCUIT



SUN DAING,                                       No. 06-70210

              Petitioner,                        Agency No. A095-585-118

  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 April 15, 2010
                            San Francisco, California

Before:       KOZINSKI, Chief Judge, ARCHER, Senior Circuit Judge,** and
              CALLAHAN, Circuit Judge.

       Whether Daing suffers from a mental impairment that excuses his untimely

asylum application is a disputed factual question over which we lack jurisdiction.

See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam).

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Glenn L. Archer, Jr., Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.
                                                                                  page 2

Assessing the severity of Daing’s depression involves an unreviewable

determination “dependent . . . upon the identity of the person.” Id. at 656 (internal

quotation marks omitted) (alteration in original). We lack jurisdiction over the

denial of the motion to reopen because it pertains to the merits of this previously-

made discretionary determination. See Fernandez v. Gonzales, 439 F.3d 592, 603

(9th Cir. 2006).

      Substantial evidence supports the BIA’s denial of the application for

withholding of removal because Daing didn’t demonstrate a likelihood of future

persecution. Even if we assume that Daing suffered past persecution as a child, the

government has rebutted the presumption based on that persecution by

demonstrating a “fundamental change in circumstances.” Hanna v. Keisler, 506

F.3d 933, 938 (9th Cir. 2007). The immigration judge reasonably found that

“country conditions have quite obviously changed and changed to such a radical

degree that [Daing’s] experiences [pre-1979] provide no basis for a well-founded

fear of future persecution.” Daing’s unpleasant experiences post-1979 don’t rise to

the level of persecution, and therefore don’t establish a presumption of future

persecution.


      DISMISSED IN PART AND DENIED IN PART.
