Yu Guo v. Matthew Whitaker

FILED
NOT FOR PUBLICATION
DEC 18 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YU GUO, No. 16-70291
Petitioner, Agency No. A201-191-795
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 5, 2018**
Pasadena, California
Before: O’SCANNLAIN and IKUTA, Circuit Judges, and STEEH,*** District
Judge.
*
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).
***
The Honorable George Caram Steeh III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
Petitioner, Yu Guo, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) denial of application for asylum and relief
from removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. The BIA
dismissed his application as untimely because Petitioner did not file his application
within one-year after arriving in this country as required by 8 U.S.C.
§ 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2), and failed to show changed or
extraordinary circumstances that would excuse his untimeliness. For the reasons
stated below, we deny the petition.
1. Substantial evidence supports the BIA’s conclusion that extraordinary
circumstances do not justify Petitioner’s untimely filing. Extraordinary
circumstances include maintaining lawful status until a reasonable period before
filing for asylum. 8 C.F.R. § 1208.4(a)(5)(iv). Petitioner’s lawful status ended
when he dropped out of school in March, 2009, not when Immigration and
Customs Enforcement (“ICE’) notified him of his removability for doing so in
June, 2011. Dhital v. Mukasey, 532 F.3d 1044, 1050 (9th Cir. 2008) (student who
drops of out school loses F-1 status as of that date). Petitioner’s delay in applying
for asylum nearly four years after arriving in the United States, and 25 months after
he stopped attending school, without any explanation, is unreasonable. See id. at
1050 (waiting 22-months after failing to enroll in school to file for asylum
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unreasonable); Husyev v. Mukasey, 528 F.3d 1172, 1182 (9th Cir. 2008) (waiting
364-days after end of lawful status to apply for asylum unreasonable and
recognizing that “reasonable period” for filing would not ordinarily exceed six
months after end of lawful status).
2. Substantial evidence also supports the BIA’s conclusion that Petitioner’s
untimeliness is not excused under the “changed circumstances” exception. 8
U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4). Shortly before coming to the
United States in 2007, Petitioner’s high school teacher lectured him and a small
group of his classmates on Christianity, which led to his arrest and brief detention
until his mother paid a fine and secured his release. During this encounter with
police, Petitioner was accused of taking part in anti-government activities and
slapped twice. In November, 2008, and February, 2009, Petitioner mailed religious
materials back to that teacher in China. In March, 2009, Petitioner’s mother told
him that the police had come to her and told her that if he returned to China he
would be arrested for sending anti-government materials. The police never
contacted her again, but in November, 2010, Petitioner’s mother went to the police
of her own accord and was told his case was still open. She told him that if he
returned to China, he would be arrested.
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Substantial evidence also supports the BIA’s conclusion that his mother’s
visit to the police in November, 2010 does not amount to “changed circumstances”
which materially affected Petitioner’s eligibility for asylum. The BIA correctly
concluded that the November, 2010 police visit instigated by his mother was a
mere continuation of the March, 2009 police visit which put Petitioner on notice
that he was subject to arrest for mailing religious materials if he returned to China.
Petitioner’s situation is markedly distinguishable from Vahora v. Holder, 641 F.3d
1038, 1043-44 (9th Cir. 2011), where we found changed circumstances in India
existed which excused petitioner’s untimeliness because deadly riots took place
after Petitioner left the country, his house and farmhouse were burned down, one
brother was arrested and had not been seen since, and another brother disappeared
after police threatened to arrest him. By contrast, Petitioner can point to no
changed country conditions in China, nor any repercussions to his family members,
that would excuse his failure to timely file for asylum.
3. Substantial evidence also supports the BIA’s conclusion that Petitioner is
not entitled to withholding of removal because he failed to prove that it is more
likely than not that he would be subject to persecution based on protected status if
removed to China. Because Petitioner on appeal to the BIA did not argue that he
was persecuted in China and has not demonstrated past persecution, Petitioner is
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not entitled to a presumption that his life or freedom would be threatened in the
future. See 8 C.F.R. § 1208.16(b)(1). Rather, he must establish a clear probability
of future persecution in China. See Tamang v. Holder, 598 F.3d 1083, 1091 (9th
Cir. 2010); Al-Harbi v. I.N.S., 242 F.3d 882, 890-91 (9th Cir. 2001). Petitioner has
failed to demonstrate that his conversion to Christianity while in the United States,
or his mailing of religious materials to China in 2008 and 2009, puts him at risk for
persecution upon removal. Since early 2009, the police have not sought out any of
Petitioner’s relatives seeking news of his return or indicating any intention of
arresting him. His mother’s own inquiry to the police in November, 2010, where
she learned his case was not closed, does not suggest there is a clear probability
that Chinese authorities are looking for him and would persecute him now. See Gu
v. Gonzales, 454 F.3d 1014, 1021-22 (9th Cir. 2006) (holding Chinese Christian
did not have a well-founded fear of future prosecution even where a friend told him
that authorities had come to look for him, and police visited his home and told his
wife to ask him back for questioning).
PETITION FOR REVIEW DENIED.