Qing Zeng v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
QING ZENG, No. 14-73342
Petitioner, Agency No. A096-360-221
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 08, 2020**
Before: TROTT, SILVERMAN, and N.R. SMITH, Circuit Judges.
Qing Zeng, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal
proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen. Najmabadi v. Holder, 597
F.3d 983, 986 (9th Cir. 2010). We dismiss in part and deny in part his 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).
We lack jurisdiction to review the BIA’s decision not to reopen proceedings
sua sponte. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (“[T]his court
has jurisdiction to review Board decisions denying sua sponte reopening only for
the limited purpose of reviewing the reasoning behind the decisions for legal or
constitutional error.”).
As to Zeng’s claim based on ineffective assistance of counsel, Zeng has not
challenged the BIA’s finding that in waiting years to raise the claim, he failed to
act diligently. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir.
2013) (issues not specifically raised and argued in a party’s opening brief are
waived). Zeng also does not challenge the BIA’s determination that he failed to
establish prima facie eligibility for relief under the Convention Against Torture.
See id. Thus, these claims are waived.
The BIA did not abuse its discretion in denying Zeng’s motion to reopen as
untimely and numerically barred. “‘If agency discretion is to mean anything, it
must be that the agency has some latitude in deciding when to reopen a case. The
agency should have the right to be restrictive. Granting such motions too freely
will permit endless delay of deportation by aliens creative and fertile enough to
continuously produce new and material facts sufficient to establish a prima facie
case.’” INS v. Abudu, 485 U.S. 94, 108 (1988) (quoting with approval INS v. Jong
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Ha Wang, 450 U.S. 139, 144 (1981) (quoting from Judge Wallace’s dissenting
opinion in Villena v. INS, 622 F.2d 1352, 1362 (9th Cir. 1980) (en banc)).
The BIA concluded that Zeng failed sufficiently to establish materially
changed country conditions for Christians in China to qualify for an exception to
the time and numerical limitations for motions to reopen. After thoroughly
reviewing the record, we cannot say that the BIA’s decision was either arbitrary,
irrational, or contrary to law. First, Zeng’s own evidence from a 2012 State
Department Report discloses that “In parts of the country, local authorities tacitly
approved of or did not interfere with the activities of unregistered groups.
Guangdong officers, for example, increasingly allowed unregistered places of
worship to hold services provided that they remained small in scale and did not
disrupt social stability”. Zeng is from Guangdong, not Beijing. He attended
“house church” meetings, not large gatherings.
Second, Zeng submitted an article from the National Review Online dated
Feb. 19, 2014 by Jillian Melchior. She spent a year in China and reported from
personal experience that “persecution seemed to be a waning concern for
Christians”.
PETITION FOR REVIEW DISMISSED in part and DENIED in part.
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