Malcolm Alarmo Addy v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
APR 22 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MALCOLM ALARMO ADDY, AKA Nos. 18-70018
Malcolm Alarmo King, 19-70880
Petitioner, Agency No. A092-578-405
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**
San Francisco, California
Before: W. FLETCHER, RAWLINSON, and BADE, Circuit Judges.
Petitioner Malcolm Alarmo Addy is a native and citizen of Liberia. He
petitions for review of two decisions from the Board of Immigration Appeals
(BIA) denying motions to reopen his immigration proceedings. We have
*
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).
jurisdiction under 8 U.S.C. § 1252(a)(1). Reviewing for an abuse of discretion, we
dismiss the petition for review in No. 18-70018 and deny the petition for review in
No. 19-70880. See Aguilar Fermin v. Barr, 958 F.3d 887, 892 (9th Cir. 2020)
(applying an abuse of discretion standard of review).
1. We dismiss Petitioner’s petition for review of the BIA decision dated
December 22, 2017, denying Petitioner’s motion requesting the BIA to sua sponte
reopen his immigration proceedings for adjustment of status. Petitioner does not
assert that the BIA’s denial was premised on “legal or constitutional error.”
Bonilla v. Lynch, 840 F.3d 575, 586-88 (9th Cir. 2016), as amended (recognizing
that while the BIA’s sua sponte authority is generally not subject to judicial review,
we have “jurisdiction to review [BIA] decisions denying sua sponte reopening for
the limited purpose of reviewing the reasoning behind the decisions for legal or
constitutional error.”) (italics omitted). Rather, he bases his challenge on the
BIA’s “departure from settled practice.” Lona v. Barr, 958 F.3d 1225, 1236-37
(9th Cir. 2020) (rejecting departure from a “settled course” as a basis for
jurisdiction over the BIA’s denial of sua sponte relief).
2. The immigration court was not deprived of jurisdiction over Petitioner’s
immigration proceedings in No. 19-70880 due to his Notice to Appear lacking the
date and time of appearance. See Aguilar Fermin, 958 F.3d at 895 (holding that
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“the lack of time, date, and place” in a notice to appear “did not deprive the
immigration court of jurisdiction” when that information was subsequently
provided and permitted an appearance).
3. The BIA did not abuse its discretion when denying Petitioner’s motion to
reopen based on changed country conditions. See Rodriguez v. Garland, 990 F.3d
1205, 1209 (9th Cir. 2021) (explaining that to support “a motion to reopen based
on changed country conditions,” a petitioner “must produce [material] evidence
that country conditions have changed,” which was not “available previously,” and
“would establish prima facie eligibility for the relief sought”) (citations,
alterations, and internal quotation marks omitted). The BIA reasonably concluded
that country conditions in Liberia with respect to the treatment of people in the
LGBTQ community and in the Americo-Liberian community generally, or as
related to his family, have not materially changed. See id. at 1208 (explaining that
“to reopen proceedings based on changed country conditions, Petitioner must carry
a heavy burden to demonstrate qualitatively different evidence that addresses two
points in time: the time of the petitioner’s previous hearing, and the time of the
motion to reopen”) (alterations and internal quotation marks omitted).
Recent country reports belie Petitioner’s claim that he fears harm as a
member of the media. These reports indicate that the media is active and “able to
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express a wide variety of views,” and that any harassment directed against media
was based on political opinion, with no indication of harassment for advocating
against drug abuse, which Petitioner describes as his focus. The BIA therefore did
not abuse its discretion in denying Petitioner’s motion, because country conditions
in Liberia were not qualitatively different between 2011 and 2019. See id. at 1209-
11; see also Najmabadi v. Holder, 597 F.3d 983, 989 (9th Cir. 2010) (denying
petition because current country conditions were not “qualitatively different” from
the time of Petitioner’s asylum hearing).
PETITION FOR REVIEW IN NO. 18-70018 DISMISSED AND
PETITION FOR REVIEW IN NO. 19-70880 DENIED.
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