Chen Li v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
FEB 6 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHEN LI, No. 17-70111
Petitioner, Agency No. A089-880-152
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**
Pasadena, California
Before: THOMAS, Chief Judge, and WARDLAW and NGUYEN, Circuit Judges.
Chen Li, a Chinese citizen, petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) denying her motion to reopen her removal
proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we deny the
*
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).
petition. Because the parties are familiar with the history of the case, we need not
recount it here.
We review the BIA’s denial of a motion to reopen removal proceedings for
abuse of discretion. Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We
review factual findings underlying the BIA’s decision for substantial evidence.
Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir. 2004).
The BIA did not abuse its discretion in concluding that Li’s motion to
reopen was untimely because Li filed the petition more than 90 days after the
BIA’s final decision denying her asylum application. See 8 C.F.R. § 1003.2(c)(2).
The BIA properly concluded that Li’s motion did not warrant an exception to the
usual 90-day limit because she did not produce sufficient evidence of changed
country conditions in China, but instead relied only on changed personal
circumstances. See 8 C.F.R. § 1003.2(c)(3)(ii); see also Chandra v. Holder, 751
F.3d 1034, 1037 (9th Cir. 2014) (holding that evidence of changes in personal
circumstances alone, without evidence of changed country conditions, is
insufficient to warrant reopening of proceedings). Li also fails to produce
sufficient evidence that the 90-day limit should have been equitably tolled due to
ineffective assistance of counsel.
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Substantial evidence supports the BIA’s alternate conclusion that Li did not
establish prima facie eligibility for the relief she seeks. A petitioner may seek
asylum based on past persecution or a well-founded fear of future persecution
because of her membership in the class of “gay men with female sexual identities.”
Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1091 (9th Cir. 2000), overruled on
other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005). Though Li
fits within this particular social group, the evidence Li submitted of past
harassment on account of her perceived gender identity, while disturbing, does not
rise to the extreme level of persecution, and she submitted no evidence to support a
fear of future persecution. Cf. id. at 1097 (holding that repeated rape and sexual
assault by members of the police force on account of the petitioner’s sexual
identity constituted persecution); see also Pedro-Mateo v. I.N.S., 224 F.3d 1147,
1150 (9th Cir. 2000) (“A failure to satisfy the lower standard of proof required to
establish eligibility for asylum . . . necessarily results in a failure to demonstrate
eligibility for withholding of deportation). Li also did not submit evidence that it
was more likely than not that she will be tortured based on her status if she is
returned to China, as the CAT requires. See 8 C.F.R. § 1208.16(c); cf. Avendano-
Hernandez v. Lynch, 800 F.3d 1072, 1079–82 (9th Cir. 2015) (holding that the
petitioner was entitled to CAT protection based on evidence that she had suffered
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repeated sexual abuse at the hands of government officials specifically because of
her sexual identity and unrebutted country conditions evidence showing that such
violence continues to plague transgendered women in Mexico).
We lack jurisdiction to consider Li’s initial application for asylum because
she did not petition this Court for review within 30 days of the BIA’s dismissal of
her appeal. 8 U.S.C. § 1252(b)(1); see also Abdisalan v. Holder, 774 F.3d 517,
521 (9th Cir. 2014) (en banc) (stating, “This time limit is mandatory and
jurisdictional.”) (internal quotation marks and citation omitted).
We deny Petitioner’s Motion to Hold Proceedings in Abeyance.
PETITION DENIED.
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