Opinion
16-71187
12-07-2021
YINGHUI ZHANG, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Argued and Submitted November 19, 2021 San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A097-859-358
Before: W. FLETCHER and MILLER, Circuit Judges, and KORMAN, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.
Yinghui Zhang ("Zhang") petitions for review of a decision by the Board of Immigration Appeals ("BIA") denying his untimely and numerically barred motion to reopen based on changed country conditions. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
We review the BIA's "denial of a motion to reopen for abuse of discretion." Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016) (citing Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003)). "The BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to law." Id. (quoting Avagyan v. Holder, 646 F.3d 672, 678 (9th Cir. 2011)). To prevail on a motion to reopen on the basis of changed country conditions, a petitioner must:
(1) produce evidence that conditions have changed in the country of removal; (2) demonstrate that the evidence is material; (3) show that the evidence was not available and would not have been discovered or presented at the previous hearings; and (4) "demonstrate that the new evidence, when considered together with the evidence presented at the original hearing, would establish prima facie eligibility for the relief sought."Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017) (quoting Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008)).
The BIA did not abuse its discretion in denying Zhang's motion to reopen. In his motion to reopen, Zhang claimed that new developments lent additional support to his initial claim that he would be persecuted if removed to China on account of his efforts to publicize his employer's corrupt practices. The BIA concluded that the new evidence produced by Zhang is not material because Zhang had previously been found not credible in his claim that he had been a whistleblower in China. Zhang argues that the BIA erred, under Yang v. Lynch, 822 F.3d 504 (9th Cir. 2016), in relying on an Immigration Judge's ("IJ") adverse credibility determination from his prior hearing. In Yang, the petitioner had been found not credible in his testimony supporting his asylum claim based on alleged government corruption. Id. at 507. Petitioner later moved to reopen based on his claimed conversion to Christianity. Id. We held in Yang that the IJ's prior adverse credibility finding could not be used as the basis for finding Yang's new claim not credible. Id. at 509. Here, in contrast, the events that post-dated the previous adverse credibility determination are all directed to the truth of Zhang's initial claim based on his alleged whistleblowing, which the IJ has already found not credible. Without a new claimed ground for relief, this case does not come within the rationale of Yang, and the BIA did not abuse its discretion in finding Zhang's new evidence immaterial.
PETITION DENIED.