Gui Zheng v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GUI XIANG ZHENG, AKA Jing Yu Chen, No. 14-70936 Petitioner, Agency No. A073-448-348 v. JEFFERSON B. SESSIONS III, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 19, 2017 San Francisco, California Before: CALLAHAN and BEA, Circuit Judges, and RESTANI,** Judge. Petitioner Gui Xiang Zheng, a native and citizen of China, seeks review of the March 10, 2014 Board of Immigration Appeals (“BIA”) decision dismissing her appeal of an Immigration Court decision that denied her motion to reopen her asylum application. “Denials of motions to reopen are reviewed for an abuse of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. discretion, although de novo review applies to the BIA’s determination of purely legal questions.” Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir. 2002). We grant the petition and remand. “Typically, petitioners are limited to filing one motion to reopen within ninety days of the date of a final order of removal.” He v. Gonzales, 501 F.3d 1128, 1131 (9th Cir. 2007); 8 C.F.R. § 1003.2(c)(2). However, the ninety-day time limit does not apply to a motion to reopen proceedings “[t]o apply or reapply for asylum based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Petitioner argues that she submitted evidence that establishes changed circumstances in China with regard to: (1) persecution of Christians, (2) torture of repatriated Chinese emigrants, and (3) enforcement of China’s family planning policies. The BIA did not abuse its discretion in rejecting Petitioner’s argument based on persecution of Christians in China. In light of Petitioner’s own statement that she was a Christian in 1996, the I.J.’s conclusion that “at least some of the evidence [she] submitted was available at the time of her initial application” was not arbitrary. And the BIA’s weighing of the evidence presented was not arbitrary, irrational, or contrary to law. See Sowe v. Mukasey, 538 F.3d 1281, 1286 (9th Cir. 2 14-70936 2008) (stating this court was “not in a position to second-guess the IJ's construction of the somewhat contradictory . . . country report”); cf. Jiang v. Lynch, 647 F. App’x 831, 832 (9th Cir. 2016) (upholding the BIA’s finding “that the recent reports of persecution of Christians were not materially worse than the description of persecution of Christians in the 2004 Country Report”). Nor did the BIA err in rejecting Petitioner’s Convention Against Torture (“CAT”) argument. Petitioner argues only that, on the merits, she would be entitled ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals