Zhong Li v. Robert Wilkinson

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHONG LI, No. 15-70901
Petitioner, Agency No. A096-063-340
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2021**
Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges.
Zhong Li, a native and citizen of China, petitions for review of the Board of
Immigration Appeals’ (“BIA”) order denying his motion to reopen proceedings.
We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion 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).
denial of a motion to reopen, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.
2002), and deny the petition for review.
The BIA did not abuse its discretion in concluding that Li failed to establish
a prima facie case for the relief and protection he sought and that he failed to
establish that he qualified for the exception to the filing deadline for motions to
reopen by introducing previously unavailable, material evidence. 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Najmabadi v. Holder, 597 F.3d
983, 986 (9th Cir. 2010); see also Li v. Holder, 475 F. App’x 197 (9th Cir. 2012)
(denying in part and dismissing in part Li’s previous petition for review).
Li argues that he submitted evidence that establishes changed circumstances
in China with regard to the persecution and torture of Christians since his hearing.
As the BIA noted, however, Li’s evidence indicates that the mistreatment of some
church members by the Chinese government has been an ongoing problem,
including at the time of Li’s hearing in 2004. The BIA’s weighing of the evidence
presented was not “arbitrary, irrational, or contrary to law.” Bhasin v. Gonzales,
423 F.3d 977, 983 (9th Cir. 2005) (internal quotation marks omitted); see Sowe v.
Mukasey, 538 F.3d 1281, 1286 (9th Cir. 2008) (stating this court was not in a
position to second-guess the agency’s rational construction of an ambiguous or
somewhat contradictory country report); see also Najmabadi, 597 F.3d at 987–90
(evidence must be “qualitatively different” to warrant reopening). Additionally,
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the personal evidence presented by Li, including his temporary church membership
card and the letter from his father in China, does not compel the conclusion that
conditions have materially worsened for Christians since his hearing or that he
established prima facie eligibility for relief and protection.
The record also does not support Li’s assertion that the agency failed to
consider relevant country-conditions evidence or otherwise failed to adequately
review and consider the evidence presented. Although the BIA in considering a
motion to reopen proceedings must consider the alien’s evidence of changed
country conditions, “it need not expressly refute on the record every single piece of
evidence.” Feng Gui Lin v. Holder, 588 F.3d 981, 987 (9th Cir. 2009).
As stated in the court’s May 29, 2015 order, the temporary stay of removal
remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED.
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