Filed: Feb. 12, 2020
Latest Update: Mar. 03, 2020
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ZUCHAO HE, No. 18-70696 Petitioner, Agency No. A099-670-043 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 4, 2020** Honolulu, Hawaii Before: FARRIS, McKEOWN, and BADE, Circuit Judges. Zuchao He, a native and citizen of China, petitions for review of the Board
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ZUCHAO HE, No. 18-70696 Petitioner, Agency No. A099-670-043 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 4, 2020** Honolulu, Hawaii Before: FARRIS, McKEOWN, and BADE, Circuit Judges. Zuchao He, a native and citizen of China, petitions for review of the Board ..
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZUCHAO HE, No. 18-70696
Petitioner, Agency No. A099-670-043
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 4, 2020**
Honolulu, Hawaii
Before: FARRIS, McKEOWN, and BADE, Circuit Judges.
Zuchao He, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (BIA) order denying his second motion to reopen
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252 and deny the
petition.
*
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).
1. We review the BIA’s denial of a motion to reopen for abuse of
discretion and will reverse “only if the [BIA] acted arbitrarily, irrationally, or
contrary to law.” Martinez-Hernandez v. Holder,
778 F.3d 1086, 1088 (9th Cir.
2015) (citation omitted). Motions to reopen are “disfavored” and subject to the
Attorney General’s “broad discretion.” See INS v. Doherty,
502 U.S. 314, 323
(1992) (citation omitted).
The BIA did not abuse its discretion in denying He’s second motion to
reopen as untimely and number barred. He filed his second motion to reopen more
than seven years after the final order of removal.1 The BIA concluded that He
failed to establish materially changed country conditions to qualify for the
regulatory exception to the filing deadline and numerical bar. See 8 C.F.R.
§§ 1003.2(c)(2), 1003.2(c)(3)(ii). We agree with the BIA that He’s proffered
evidence reflects the continuation of adverse treatment of various religious groups
in China; it is not new, “qualitatively different” evidence. See Najmabadi v.
Holder,
597 F.3d 983, 987-89 (9th Cir. 2010).
2. He argues that the BIA improperly considered the evidence relating to
his personal circumstances submitted with his second motion to reopen. To reopen
proceedings based on changed country conditions, He needed to establish prima
1
This court upheld the BIA’s denial of He’s first motion to reopen. See He v.
Sessions, 692 F. App’x 390 (9th Cir. June 2, 2017).
2
facie eligibility for relief. See Toufighi v. Mukasey,
538 F.3d 988, 996 (9th Cir.
2008). Any error by the BIA in giving reduced weight to He’s affidavit is
harmless because the BIA separately found that the affidavit was speculative and
conclusory on whether He would suffer harm upon return to China, and that He’s
evidence failed to establish prima facie eligibility for relief. See Nagoulko v. INS,
333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of future harm is too speculative);
Maroufi v. INS,
772 F.2d 597, 600 (9th Cir. 1985) (holding that BIA’s error in
considering alien’s affidavit in support of motion to reopen was harmless because
alien failed to establish prima facie case of eligibility). The record does not
compel a reversal of that factual finding. See Celis-Castellano v. Ashcroft,
298
F.3d 888, 892 (9th Cir. 2002).
PETITION FOR REVIEW DENIED.
3