Zuchao He v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2020
• Docket: 18-70696
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ZUCHAO HE, No. 18-70696

Petitioner, Agency No. A099-670-043

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** Honolulu, Hawaii

Before: FARRIS, McKEOWN, and BADE, Circuit Judges.

Zuchao He, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ (BIA) order denying his second motion to reopen

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252 and deny the

petition.

* 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. We review the BIA’s denial of a motion to reopen for abuse of

discretion and will reverse “only if the [BIA] acted arbitrarily, irrationally, or

contrary to law.” Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir.

2015) (citation omitted). Motions to reopen are “disfavored” and subject to the

Attorney General’s “broad discretion.” See INS v. Doherty, 502 U.S. 314, 323

(1992) (citation omitted).

The BIA did not abuse its discretion in denying He’s second motion to

reopen as untimely and number barred. He filed his second motion to reopen more

than seven years after the final order of removal.1 The BIA concluded that He

failed to establish materially changed country conditions to qualify for the

regulatory exception to the filing deadline and numerical bar. See 8 C.F.R.

§§ 1003.2(c)(2), 1003.2(c)(3)(ii). We agree with the BIA that He’s proffered

evidence reflects the continuation of adverse treatment of various religious groups

in China; it is not new, “qualitatively different” evidence. See Najmabadi v.

Holder, 597 F.3d 983, 987-89 (9th Cir. 2010).

2. He argues that the BIA improperly considered the evidence relating to

his personal circumstances submitted with his second motion to reopen. To reopen

proceedings based on changed country conditions, He needed to establish prima

1 This court upheld the BIA’s denial of He’s first motion to reopen. See He v. Sessions, 692 F. App’x 390 (9th Cir. June 2, 2017).

2 facie eligibility for relief. See Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir.

2008). Any error by the BIA in giving reduced weight to He’s affidavit is

harmless because the BIA separately found that the affidavit was speculative and

conclusory on whether He would suffer harm upon return to China, and that He’s

evidence failed to establish prima facie eligibility for relief. See Nagoulko v. INS,

333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of future harm is too speculative);

Maroufi v. INS, 772 F.2d 597, 600 (9th Cir. 1985) (holding that BIA’s error in

considering alien’s affidavit in support of motion to reopen was harmless because

alien failed to establish prima facie case of eligibility). The record does not

compel a reversal of that factual finding. See Celis-Castellano v. Ashcroft, 298

F.3d 888, 892 (9th Cir. 2002).

PETITION FOR REVIEW DENIED.