Shanling Lu v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 2021
• Docket: 20-71284
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 24 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHANLING LU, No. 20-71284

Petitioner, Agency No. A087-714-442

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

Respondent.

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

Submitted November 19, 2021** Pasadena, California

Before: BERZON and RAWLINSON, Circuit Judges, and DORSEY,*** 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 Jennifer A. Dorsey, United States District Judge for the District of Nevada, sitting by designation. Petitioner Shanling Lu (Lu), a native and citizen of China, seeks review of a

decision of the Board of Immigration Appeals (BIA) denying his motion to reopen

removal proceedings. His application for asylum, withholding of removal, and

relief under the Convention Against Torture was previously denied. See Lu v.

Sessions, 707 F. App’x 925 (9th Cir. 2017). In 2019, Lu joined the Chinese

Democracy Party (CDP) and filed an untimely motion to reopen immigration

proceedings based on his membership. Lu contended that his active CDP

involvement brought the attention of local police in China. According to Lu’s

wife, who still lives in China, the police continuously visit their (or her) home and

have threatened him with beatings and life imprisonment. Lu maintained that the

crackdown on democratic protestors in Hong Kong demonstrates that

circumstances for persons who support democracy in China have worsened since

his order of removal. The BIA disagreed, holding that Lu failed to establish that

there has been a material change in China for CDP members.

The denial of a motion to reopen is reviewed for abuse of discretion. See

Etemadi v. Garland, 12 F.4th 1013, 1018 (9th Cir. 2021). Generally, a motion to

reopen must be filed within 90 days from the entry of a final order of removal. See

8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2). But an exception to

the time limit is available if the motion to reopen “is based on changed country

2 conditions arising in the country of nationality . . . if such evidence is material and

was not available and would not have been discovered or presented at the previous

proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii);

Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014). We have consistently ruled that a

change in personal circumstances alone is not a sufficient basis to excuse an

untimely motion to reopen. See, e.g., Rodriguez v. Garland, 990 F.3d 1205, 1209

(9th Cir. 2021).

The record supports the BIA’s conclusion that country conditions have not

changed for CDP members in China since the time of Lu’s previous hearing. At all

relevant times, the Chinese government has banned the CDP and subjected its

members (and other political opponents) to various forms of harassment, including

wiretapping and searches. “General references to continuing or remaining

problems [are] not evidence of a change in a country’s conditions. . . .” Id. at 1210

(citation and internal quotation marks omitted) (emphasis in the original).

PETITION DENIED.