FILED NOT FOR PUBLICATION APR 19 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT YANG XIANG, No. 20-70507 Petitioner, Agency No. A205-752-951 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 15, 2021** Seattle, Washington Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges. Yang Xiang, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (BIA) denial of his motion to reopen his removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review 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). BIA’s order denying a motion to reopen for abuse of discretion, INS v. Abudu, 485 U.S. 94, 107 (1988), and the factual findings underlying the BIA’s decision for substantial evidence, Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010), and we deny the petition. 1. The parties do not dispute that Xiang’s motion to reopen was untimely. 8 U.S.C. § 1229a(c)(7). The 90-day time limit does not apply if a motion to reopen is “based on changed country conditions arising in the . . . country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” Id. § 1229a(c)(7)(C)(ii). The BIA did not abuse its discretion by concluding Xiang was not entitled to reopen his proceedings based on his argument that conditions for Christians in China have materially changed since 2015. The BIA properly concluded that Xiang did not introduce evidence of materially changed country conditions for the vast majority of Christians in China. Xiang offered evidence at his first merits hearing that, as early as 2015, free religious practice was heavily constrained in China. The record does not compel a contrary conclusion. 2. Substantial evidence also supported the BIA’s determination that Xiang could not establish prima facie eligibility for asylum even if he were able to 2 show materially changed country conditions. See Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017). To establish prima facie eligibility for asylum, an applicant must show that he is “unable or unwilling” to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). The BIA properly concluded Xiang’s 2016 Bible study certificate and baptismal certificate were not new evidence that post-dated his second merits hearing in April 2017, and declined to consider them on that basis. See Agonafer, 859 F.3d at 1204. Xiang argues that the BIA was required to decide he was a practicing Christian in China, but the IJ discredited his testimony …
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