NOT FOR PUBLICATION FILED AUG 27 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RAAD AL ZAIDI, No. 20-70704 Petitioner, Agency No. A071-725-095 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted August 5, 2021 Anchorage, Alaska Before: WARDLAW, MILLER, and BADE, Circuit Judges. Raad Al Zaidi, a native and citizen of Iraq, petitions for review of an order of the Board of Immigration Appeals. In 2017, Al Zaidi moved to reopen his 2005 immigration proceedings to apply for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) in light of changed country conditions in Iraq. An immigration judge denied reopening, and the Board affirmed. While his appeal was pending before the Board, Al Zaidi moved to * This disposition is not appropriate for publication and is not precedent remand to the immigration judge for consideration of a new declaration prepared by Daniel Smith, a researcher studying human rights abuses in Iraq. Having already considered Smith’s original declaration and extensive evidence of conditions in Iraq, the Board denied the motion to remand because it determined that the new declaration was unlikely to “change the outcome of the case” as it was “largely cumulative of” and “substantially similar to” Smith’s original declaration. See Matter of L-A-C-, 26 I. & N. Dec. 516, 526 (B.I.A. 2015) (“A motion to remand for the purpose of presenting additional evidence . . . will only be granted if the evidence was previously unavailable and would likely change the result in the case.”). Al Zaidi has expressly disclaimed any claim of error in the Board’s treatment of his motion to reopen. In his briefing, and again at oral argument, he confirmed that he asks us to review only the Board’s refusal to remand to allow him to pursue his CAT claim. Reviewing that narrow issue for abuse of discretion, see Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013), we deny the petition. 1. The government asks that we dismiss Al Zaidi’s petition as it relates to his claims for asylum and withholding of removal, arguing that the Supreme Court’s opinion in Nasrallah v. Barr, 140 S. Ct. 1683 (2020), abrogates our “on- the-merits” exception to 8 U.S.C. § 1252(a)(2)(C)’s jurisdiction-stripping except as provided by Ninth Circuit Rule 36-3. 2 provision. See Agonafer v. Sessions, 859 F.3d 1198, 1202–03 (9th Cir. 2017). But Al Zaidi does not seek review of those claims; he challenges only the Board’s refusal to remand to allow Al Zaidi to pursue protection under the CAT. As the government concedes, Nasrallah confirmed that, notwithstanding section 1252(a)(2)(C), we have jurisdiction to review factual challenges to the denial of protection under the CAT. 140 S. Ct. at 1688. We therefore do not decide whether Nasrallah abrogates the on-the-merits exception. 2. Al Zaidi first argues that the Board abused its discretion by mischaracterizing the new Smith …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals