FILED
NOT FOR PUBLICATION
DEC 7 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YINGHUI ZHANG, No. 16-71187
Petitioner, Agency No. A097-859-358
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 19, 2021
San Francisco, California
Before: W. FLETCHER and MILLER, Circuit Judges, and KORMAN,** District
Judge.
Yinghui Zhang (“Zhang”) petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) denying his untimely and numerically barred motion
*
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.
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
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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.
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