Khan v. I.N.S.

Full title: Asif Soheal KHAN; et al., Petitioners, v. IMMIGRATION AND NATURALIZATION…

Court: United States Court of Appeals, Ninth Circuit

Date published: Dec 28, 2001

22 F. App'x 886 (9th Cir. 2001)

Opinion

22 Fed.Appx. 886 (9th Cir. 2001) Asif Soheal KHAN; et al., Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 00-70680. INS Nos. A70-806-459, A70-806-460, A70-806-461, A70-806-462. United States Court of Appeals, Ninth Circuit. December 28, 2001

Submitted December 17, 2001. ^*

* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

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

Before SCHROEDER, Chief Judge, TROTT, and PAEZ, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

Asif Soheal Khan, Anila Asif Khan, Sufyan Asif Khan and Laareb Asif Khan, natives and citizens of Kenya, ¹ petition for review from the order of the Bureau of Immigration Appeals ("BIA") denying their motion to reopen deportation proceedings. We have jurisdiction pursuant to 8 U.S. C.§ 1105a. ² We review for abuse of discretion the BIA's denial of a motion to reopen, Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996), and we deny the petition.

1 Anila Asif Khan is a native and citizen of Pakistan, but lived with her family in Kenya.

2 Pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), and we therefore have jurisdiction under 8 U.S.C. § 1105a(a), as amended by IIRIRA § 309(c), see Avetova-Elisseva v. INS, 213 F.3d 1192, 1195 n. 4 (9th Cir.2000).

The Khans contend that the BIA abused its discretion by denying their motion to reopen. We disagree because the Khans' new evidence supporting their motion does not present a prima facie case for either asylum or withholding of deportation. See Kaveh-Haghigy v. INS, 783 F.2d 1321, 1323 (9th Cir.1986); Larimi v. INS, 782 F.2d 1494, 1497 (9th Cir.1986) (per curiam).

Although we agree that the BIA erred by requiring the Khans to address credibility in their motion to reopen, see Khan v. INS, No. 96-70133, 1997 WL 335015, at ^*1 (9th Cir. June 12, 1997), we conclude that the error was not prejudicial because the Khans failed to establish eligibility for asylum, cf. Maroufi v. INS, 772 F.2d 597, 600 (9th Cir.1985).

PETITION FOR REVIEW DENIED.