SUN DAING, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent, 378 F. App'x 620

MEMORANDUM Whether Daing suffers from a mental impairment that excuses his untimely asylum application is a disputed factual question over which we lack jurisdiction. See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam). Assessing the severity of Daing’s depression involves an unreviewable determination “dependent ... upon the identity of the person.” Id. at 656 (internal quotation marks omitted) (alteration in original). We lack jurisdiction over the denial of the motion to reopen because it pertains to the merits of this previously-made discretionary determination. See Fernandez v.

Gonzales, 439 F.3d 592, 603 (9th Cir.2006). Substantial evidence supports the BIA’s denial of the application for withholding of removal because Daing didn’t demonstrate a likelihood of future persecution. Even if we assume that Daing suffered past persecution as a child, the government has rebutted the presumption based on that persecution by demonstrating a “fundamental change in circumstances.” Hanna v. Keisler, 506 F.3d 933, 938 (9th Cir.2007).

The immigration judge reasonably found that “country conditions have quite obviously changed and changed to such a radical degree that [Daing’s] experiences [pre-1979] provide no basis for a well-founded fear of future persecution.” Daing’s unpleasant experiences post-1979 don’t rise to the level of persecution, and therefore don’t establish a presumption of future persecution. DISMISSED IN PART AND DENIED IN PART. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.