Jianho Lui v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 27 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JIANHO LUI, No. 21-70619

Petitioner, Agency No. A213-375-391

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted January 19, 2022**

Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.

Jianho Lui1, a native and citizen of China, petitions pro se for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his motion to reopen proceedings and

* 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 Petitioner’s filings indicate that he spells his name “Liu.” rescind his in absentia removal order. We have jurisdiction under 8 U.S.C. § 1252.

We review for abuse of discretion the denial of a motion to reopen. Celis–

Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir. 2002). We grant and remand

the petition for review.

The BIA abused its discretion in denying Lui’s motion to reopen where it

failed to properly consider the totality of the circumstances in determining whether

Lui has established exceptional circumstances. See 8 U.S.C. § 1229a(b)(5)(C)(i),

(e)(1); Hernandez-Galand v. Garland, 996 F.3d 1030, 1034-35 (9th Cir. 2021) (“In

considering the totality of the circumstances, the BIA must first consider whether

‘petitioners did all they reasonably could to have their cases heard promptly,’ and

whether ‘through no fault of their own, [petitioners] have never had their day in

court to present their claim,’” in addition to other relevant considerations.)

(citations omitted). In addition, it appears the BIA did not properly credit Lui’s

declaration. See Celis-Castellano, 298 F.3d at 892 (“[T]he Board must accept the

facts in an alien’s affidavit as true unless inherently unbelievable.”). Thus, we

grant the petition for review and remand to the BIA for further proceedings

consistent with this disposition.

In light of this disposition, we do not reach Lui’s remaining contentions. See

Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are

not required to decide issues unnecessary to the results they reach).

2 21-70619 The motion for a stay of removal (Docket Entry No. 1) is granted. Lui’s

removal is stayed pending a decision by the BIA.

The parties must bear their own costs for this petition for review.

PETITION FOR REVIEW GRANTED; REMANDED.

3 21-70619