                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JAN 08 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
SAMIR ELIAS FASHHO,                              No. 12-70551

              Petitioner,                        Agency No. A029-891-384

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted January 5, 2016**
                             San Francisco, California

Before: WALLACE, KOZINSKI, and O’SCANNLAIN, Circuit Judges.

      Samir Elias Fashho challenges a decision of the Board of Immigration

Appeals (“BIA”) denying his untimely motion to reopen removal proceedings

based on changed country conditions consisting of the takeover of the Gaza Strip

by Hamas. We deny the petition for review.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                             I

       In order to prevail on his motion to reopen, Fashho needed to clear each of

four hurdles:

       (1) he had to produce evidence that conditions had changed in [Gaza]; (2)
       the evidence had to be “material”; (3) the evidence must not have been
       available and would not have been discovered or presented at the previous
       proceeding; and (4) he had to “demonstrate that the new evidence, when
       considered together with the evidence presented at the original hearing,
       would establish prima facie eligibility for the relief sought.”

Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008) (citations omitted). “The

Board could thus deny the motion to reopen for failing to meet any of these

burdens.” Id. (citations omitted).    We review for abuse of discretion the BIA’s

denial of a motion to reopen and defer “to the Board’s exercise of discretion unless

it acted arbitrarily, irrationally or contrary to law.” Id. at 992.

                                            A

       First, Fashho points to the emigration of Christians from Gaza as evidence of

persecution of Christians. The BIA correctly concluded that the data do not clearly

show that Christians are emigrating, that emigration accelerated after Hamas’

takeover, or that the Christian population is decreasing because of religious

persecution rather than economic, security, and fertility reasons.




                                            2
      Thus, Fashho’s new evidence of emigration, to the extent there is any, does

not show changed conditions and is not “material.”

                                          B

      Second, Fashho points to new evidence purportedly showing that Hamas is

unable or unwilling to protect Christians in Gaza. A 2010 State Department report

noted that “Hamas largely tolerated the small Christian presence in Gaza and did

not force them to abide by Islamic law, although Christians were indirectly

affected by Hamas’ religious ideology. Hamas did not sufficiently investigate or

prosecute religiously driven crimes committed by Muslim extremist vigilante

groups in Gaza.” Additionally, the report states that the Palestinian Authority

(“PA”) was not able to investigate cases of religious discrimination in Gaza due to

Hamas’ control.

      The BIA concluded that this evidence did not reflect a material change in

conditions from 2004. A 2004 State Department report “noted that there was

‘deterioration in the status of the PA’s respect for religious freedom,’ including the

seizure of land owned by Christians by criminal gangs, and collusion by PA

officials with criminals to extort property from Christians. While cases of physical

attacks against Muslims were investigated, such cases involving Christians were

not. Although relationships between Christians and Muslims ‘generally’ were


                                           3
amicable, tensions existed.”

      Because attacks against Christians were not being investigated in 2004, the

BIA correctly concluded that Fashho had failed to demonstrate that Hamas’ failure

to investigate such crimes in 2010 reflected a material change in circumstances.

                                          C

      Third, Fashho points to the bombing of a YMCA library in Gaza in 2008 as

evidence of persecution of Christians. The BIA noted that the library was targeted

by unidentified gunmen who stole a computer; that Muslims also used the YMCA;

and that Hamas condemned the bombing as an “attack on the historically friendly

relations between Christians and Muslims in Palestine.”

      The BIA found the article of little probative value because the attackers’

identities and motives were unknown. It reasonably concluded that such isolated,

unsolved crimes do not constitute material evidence of changed conditions in Gaza.

                                          D

      We conclude that the BIA did not act arbitrarily, irrationally, or contrary to

law in finding that Fashho’s evidence does not constitute new, material evidence




                                          4
showing changed conditions in Gaza.1 Therefore, we hold that the BIA did not

abuse its discretion when it denied Fashho’s motion to reopen. See Toufighi, 538

F.3d at 992.

                                          II

      Fashho argues that he has a well-founded fear of future persecution and that

he stated a prima facie case for withholding of removal and CAT relief. Because

the BIA denied Fashho’s motion to reopen based on his independently dispositive

failure to submit new, material evidence showing changed conditions, it did not

need to determine whether Fashho established a prima facie case for asylum or any

other relief. See Najmabadi v. Holder, 597 F.3d 983, 991–92 (9th Cir. 2010). Our

review is limited to the grounds relied upon by the agency, so we decline to

address this additional claim. See id. at 992.

      DENIED.




      1
        In addition to the evidence specifically discussed above, none of Fashho’s
other evidence addresses persecution of Christians in Gaza, and none of it
constitutes new, material evidence showing changed conditions.

                                          5
