Charley Zacharia v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
FEB 10 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLEY ZACHARIA, No. 20-73096
Petitioner, Agency No. A075-683-010
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2022**
Pasadena, California
Before: SCHROEDER, TALLMAN, and MILLER, Circuit Judges.
Charley Zacharia, a native and citizen of Indonesia, petitions for review of
the Board of Immigration Appeals’ denial of his fourth motion to reopen. Since
the denial of his third motion to reopen in 2018, Zacharia has come out as a gay
*
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).
man, and his motion sought to reopen on the basis of changed country conditions
in Indonesia with respect to the treatment of gay men. The BIA denied the motion
because Zacharia did not provide evidence of what conditions in Indonesia were
for gay men at the time Zacharia was ordered removed in 2002. See Salim v.
Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016) (holding that a claim of changed
country conditions depends on comparing the circumstances of the country at the
time of the original hearing and those at the time of the motion to reopen).
Zacharia argues that the change in his personal circumstances is a relevant
consideration. He relies on Chandra v. Holder, 751 F.3d 1034, 1038 (9th Cir.
2014), where we held that the BIA must consider changed country conditions as
they relate to a change in personal circumstances. We agree that a change of status
as to sexual orientation could serve as the basis to reopen a case even though that
status played no part in his original proceedings. But the movant would
nevertheless have to show that conditions in the country had changed for persons
of that status since the original proceedings. See 8 C.F.R. § 1003.2(c)(3)(ii); Salim,
831 F.3d at 1137.
Zacharia has not made the required showing that conditions in Indonesia
have worsened for gay men since Zacharia’s original proceedings. At best, the
evidence he submitted shows that while conditions for gay men are bad in
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Indonesia, they have been that way for more than thirty years. Zacharia can not
make the requisite showing of changed country conditions for reopening under 8
U.S.C. § 1229a(c)(7)(C)(ii). See 8 C.F.R. § 1003.2(c)(3)(ii).
The temporary stay of removal remains in effect until the mandate issues.
The motion for stay of removal is otherwise denied.
The petition is DENIED.
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