Bolorsukh Munkhtumur; Baatartsogt Erdenetsetseg v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOLORSUKH MUNKHTUMUR;
BAATARTSOGT ERDENETSETSEG,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-71377
Agency Nos. A088-558-350
A088-558-351
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2022**
Seattle, Washington
Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges.
Bolorsukh Munkhtumur and Baatartsogt Erdenetsetseg petition for review of
the Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen. We
review the BIA’s decision to deny a motion to reopen for abuse of discretion and
* 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).
FILED
MAR 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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will reverse only if the decision was arbitrary, irrational, or contrary to law.
Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017). We may review the
BIA’s decision to deny sua sponte reopening only for legal or constitutional error.
Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). We have jurisdiction under 8
U.S.C. § 1252, and we deny in part and dismiss in part.
1. The BIA did not abuse its discretion in denying Petitioners’ untimely
motion to reopen proceedings on the asylum claim. It found that the asserted change
in country conditions was not material to the claim. Cf. 8 C.F.R. § 1003.2(c)(3)(ii)
(explaining that the time and number limitations to a motion to reopen for asylum
do not apply if evidence of changed circumstances is shown to be “material” and
previously unavailable). Specifically, the BIA determined that even with the new
evidence that Munkhtumur’s ex-husband threatened to harm her, Munkhtumur failed
to establish a nexus between the threat and any alleged protected ground and did not
show that the Mongolian government is unable or unwilling to protect her from the
threat. See Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (holding
that for an asylum claim, the applicant must in part show (1) that the persecution was
on account of a protected ground and (2) that the persecution was committed by the
government or by forces it was unable or unwilling to control). Indeed, the BIA
noted that after a previously filed complaint, the ex-husband had been sent to prison
for seven years. Nothing in the motion to the BIA showed that the new evidence

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was material, and thus, the BIA’s determination was not arbitrary, irrational, or
contrary to law. See Agonafer, 859 F.3d at 1203.
Further, the other claims raised by Petitioners are meritless. Contrary to what
Petitioners argue, it’s evident that the BIA provided two distinct, cogent reasons for
why the motion to reopen failed. And the fact that the BIA did not address the
evidence that Mongolia now recognizes domestic abuse victims as a class is of no
consequence because even so, the cognizability of a particular social group is
irrelevant when no nexus can be established between the harm and the group. See
Baghdasaryan, 592 F.3d at 1023 (explaining that a successful asylum claim must
show persecution on account of a protected ground).
The BIA also did not disregard the evidence in support of the motion to
reopen. Although the BIA noted some concerns about Petitioners’ evidence, it went
on to accept the new evidence “irrespective of the reliability of [Munkhtumur’s]
assertion that her former husband intends to harm her” and made its ruling based on
that evidence.
2. To the extent that Petitioners challenge the BIA’s decision to deny sua
sponte reopening, this court lacks jurisdiction to review that decision. The BIA
determined that Petitioners’ circumstances were not so exceptional as to warrant sua
sponte reopening, and Petitioners do not allege any legal or constitutional error in
that ruling.

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PETITION DENIED IN PART AND DISMISSED IN PART.

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