                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 27 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DAMA GUIYE,                                      No. 08-71968

             Petitioner,                         Agency No. A096-148-615

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

             Respondent.



DAMA GUIYE,                                      No. 09-73515

              Petitioner,                        Agency No. A096-148-615

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petitions for Review of Orders of the
                         Board of Immigration Appeals

                      Argued and Submitted October 5, 2010
                              Seattle, Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: THOMAS and M. SMITH, Circuit Judges, and HOGAN, District Judge.**

      Petitioner Dama Guiye, a native and citizen of Mauritania, seeks review of

decisions of the Board of Immigration Appeals (“BIA”) affirming the decision of

an immigration judge (“IJ”) and denying Guiye’s motion to reopen. We deny the

petitions for review. Because the parties are familiar with the factual and

procedural history of these cases, we need not recount it here.

                                          I

      The BIA employed the incorrect standard in addressing Guiye’s contention

that he suffered persecution by “‘forces the government is either unable or

unwilling to control.’” Rahimzadeh v. Holder, 613 F.3d 916, 920 (9th Cir. 2010)

(quoting Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004)). Rather than

analyzing the claim under the correct standard, the BIA rejected the claim because

the persecution did not occur “by or at the behest of the Mauritanian government.”

      Normally, that error would require remand. Ornelas-Chavez v. Gonzales,

458 F.3d 1052, 1058 (9th Cir. 2006). However, substantial evidence supports the

BIA’s conclusion that the alleged harm that Guiye experienced did not rise to the

threshold level of harm required to establish persecution within the meaning of the



       **
             The Honorable Michael R. Hogan, United States District Judge for the
District of Oregon, sitting by designation.

                                          2
Immigration and Nationality Act. Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th

Cir. 2003). Therefore, we cannot say that the BIA erred in concluding that Guiye

did not meet the “high standard” of demonstrating that it is “more likely than not”

that he will be persecuted on account of a protected ground. Gui v. INS, 280 F.3d

1217, 1230 (9th Cir. 2002) (internal quotation marks omitted). Accordingly,

remand is not required in this case.

                                         II

      The BIA did not abuse its discretion in denying Guiye’s motion to reopen as

untimely filed. Guiye’s motion, which was filed almost a year late, could be

deemed timely if it alleged “‘changed circumstances arising in’” Mauritania.

Azanor v. Ashcroft, 364 F.3d 1013, 1022 (9th Cir. 2004) (quoting 8 C.F.R. §

3.2(c)(3)(ii)). The evidence submitted by Guiye did not show that circumstances

had changed in Mauritania; rather, it further substantiated evidence about country

conditions that Guiye had submitted previously. Malty v. Ashcroft, 381 F.3d 942,

945 (9th Cir. 2004) (“The critical question is . . . whether circumstances have

changed sufficiently that a petitioner who previously did not have a legitimate

claim . . . now” does. (emphasis added)). Therefore, the BIA did not err in

denying the motion to reopen.

      PETITIONS DENIED.


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