QIAN LI, AKA Amanda Lee, AKA Michelle Li, AKA Yu Fang Li, AKA Yufang Masone v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
QIAN LI, AKA Amanda Lee, AKA Michelle
Li, AKA Yu Fang Li, AKA Yufang Masone,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-73124
Agency No. A095-444-296
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 20, 2022**
Portland, Oregon
Before: PAEZ and BADE, Circuit Judges, and LEFKOW,*** District Judge.
Dissent by Judge PAEZ.
Qian Li, a native and citizen of China, petitions for review of the Board of
* 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).
*** The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
NOV 29 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 10 --

2
Immigration Appeals’ (BIA) denial of her second motion to reopen her removal
proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we deny the
petition.
1. Although we review the BIA’s decision denying a motion to reopen for
abuse of discretion, see Nababan v. Garland, 18 F.4th 1090, 1094 (9th Cir. 2021),
we may only grant petitions for review of the BIA’s decision where the evidence
“compels a contrary conclusion.” Bolshakov v. INS, 133 F.3d 1279, 1281 (9th Cir.
1998) (emphasis added). “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) (citation omitted).
In motions to reopen based on changed circumstances, the “critical question
is . . . whether circumstances have changed sufficiently that a petitioner who
previously did not have a legitimate claim for asylum now has a well-founded fear
of future persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). The
petitioner bears the burden of proving changed country conditions sufficient to

-- 2 of 10 --

3
justify reopening. See Agonafer, 859 F.3d at1204.
The BIA concluded that the evidence Li submitted in support of her motion
to reopen was “inadequate to show a material change in conditions or
circumstances in China with respect to the treatment of Christian church
members . . . since [Li’s] removal hearing in 2003.” Li contends this conclusion
was in error because the evidence she presented to the BIA demonstrated that “in
2003 . . . unregistered family churches experienced varying degrees of official
interference that were mostly limited to church leaders,” but now the evidence
demonstrates a “nationwide campaign of repressing and restricting religious
freedom, including the newly enacted national policies and regulations that
empowered the officials to crackdown on religion with increased severity.” We
disagree and find the evidence does not compel the conclusion that the BIA should
have granted Li’s motion to reopen.
First, the evidence indicates conditions for Christians in China were worse in
2003 than Li contends. For example, the record shows that “[m]any leaders and
adherents of unregistered church groups ha[d] been detained, arrested, or
sentenced to prison terms” in 2003. The record also shows that, in 2003, the
Chinese government “sought to restrict religious practice to government-
sanctioned organizations and registered places of worship” and that “unofficial
religious groups”—such as Protestant house churches—were particularly at risk,

-- 3 of 10 --

4
especially in areas where there had been a rapid growth in adherents. And
Protestant house church groups were reporting more frequent police raids and
detentions as far back as 2001, with 2003 showing a marked increase in “the
number of detentions connected with house church membership.”
Furthermore, the evidence cited by Li demonstrates that concerns about the
Chinese government’s persecution of Christians have been longstanding. The
materials consistently note China’s continuing practice of restricting the growth of
Protestant church networks, including by harassing, detaining, and imprisoning
members of both registered and unregistered church groups. They also
demonstrate that persecution remained variable based on region. While, as the
BIA acknowledged, Li’s evidence “indicates incrementally stricter enforcement of
restrictions against some religious practices and churches over the last several
years,” including house church Christians, the evidence does not establish that
“circumstances have changed sufficiently [such] that [Li] previously did not have a
legitimate claim for asylum [but] now has a well-founded fear of future
persecution.” Malty, 381 F.3d at 945.
In short, substantial evidence supports the BIA’s conclusion that
“mistreatment of some underground church members by the Chinese government
has been a longstanding concern”; “the restrictions on unregistered religious
groups and practices . . . varied significantly from region to region”; and detentions

-- 4 of 10 --

5
were usually reserved for “leaders[] of underground churches.” Li’s arguments to
the contrary are unpersuasive, and we accordingly reject them here.
2. Because there is substantial evidence that conditions for Christians in China
have worsened only incrementally since 2003, Li failed to establish an exception to
the rule permitting a single motion to reopen. See 8 C.F.R. §§ 1003.2(c)(2),
1003.2(c)(3)(ii) (stating that “a party may file only one motion to reopen [removal]
proceedings” unless the motion is “based on changed circumstances arising in the
country of nationality”). Accordingly, we do not consider Li’s contentions that the
BIA erred in denying Li’s motion based on its determination that Li failed to
establish prima facie eligibility for asylum or relief under the Convention Against
Torture.
PETITION FOR REVIEW DENIED

-- 5 of 10 --

1
Li v. Garland, No. 18-73124
Paez, J., dissenting.
I respectfully dissent. In my view, the BIA abused its discretion by finding
that Li had not shown changed conditions in China without considering evidence
of a significant material change. It then twice applied incorrect legal standards to
conclude that Li was not prima facie eligible for relief. Accordingly, I would grant
the petition and remand to the BIA.
1. Changed Country Conditions. Although the BIA has broad discretion in
deciding motions to reopen, it “must show proper consideration of all factors, both
favorable and unfavorable . . . .” Toufighi v. Mukasey, 538 F.3d 988, 993 (9th Cir.
2008); accord Chandra v. Holder, 751 F.3d 1034, 1039 (9th Cir. 2014). The BIA
abuses its discretion when its decision is “arbitrary, irrational, or contrary to law.”
Singh v. Holder, 658 F.3d 879, 885 (9th Cir. 2011) (internal quotation omitted).
The BIA’s failure to address a key portion of the evidence is an abuse of
discretion. See, e.g., Agonafer v. Sessions, 859 F.3d 1198, 1206-07 (9th Cir.
2017).
Li presented evidence of a material, qualitative change in China’s
persecution of mainstream house-church Protestants. The BIA failed to consider
the evidence of this change or to explain why it rejected this evidence. Thus, its
FILED
NOV 29 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 6 of 10 --

2
finding that country conditions have not changed since 2003 was arbitrary and an
abuse of discretion.
Li’s evidence shows that around 2014, Chinese authorities began to target
mainstream house-church Protestants using the criminal statute Article 300, which
prohibits cult activity. China first enacted Article 300 in 1999 to target the Falun
Gong spiritual movement. This statute and the government commission charged
with implementing it became a vehicle for China to carry out its violent
persecution of Falun Gong practitioners. See, e.g., Zhang v. Ashcroft, 388 F.3d
713, 716 (9th Cir. 2004) (per curiam) (describing the wave of persecution against
Falun Gong practitioners after China labeled it “an illegal cult under Article 300 of
the Criminal Law”). The record shows that groups identified as cults under this
scheme are the most vulnerable to detention, arrest, harassment, and persecution.
At the time of Li’s scheduled merits hearing in 2003, Chinese authorities did
not use Article 300 to persecute mainstream house-church Protestants. Her
evidence shows that the anti-cult initiative targeted the Falun Gong and a few
specific sects in 2003, extended to a longer list of Protestant sects between 2003 to
around 2012, and ultimately began to target mainstream house-church Protestants
around 2014. In addition, amendments to Article 300 in 2015 increased the
maximum sentence from fifteen years in prison to a life sentence. After these

-- 7 of 10 --

3
revisions, attacks on house churches and arrests of both church members and
leaders for criminal cult activity continued.
The BIA determined that the evidence showed essentially the same
conditions as in 2003. The record does not support this conclusion. The expanded
use of Article 300 against mainstream house-church Protestants is a material
change in the persecution of Li’s protected religious group. In addition, although
the BIA observed that persecution “varied significantly from region to region,” it
did not explain whether or how it considered the evidence that Li provided about
developments in her home city. The BIA thus focused on evidence that supported
a finding of continued circumstances without addressing evidence of new
developments. Because of this arbitrary omission, I would hold that the BIA
abused its discretion in finding that Li did not establish changed country
conditions.
2. Prima Facie Eligibility. Second, remand is proper because the BIA
incorrectly analyzed Li’s prima facie eligibility for relief. Li asserted a fear of
religious persecution due to China’s “pattern or practice” of persecuting Protestant
Christians. Accordingly, she was not required to show that she would be “singled
out individually” for persecution. 8 C.F.R. § 1208.13(b)(2)(iii); see Agonafer, 859
F.3d at 1206; Rusak v. Holder, 734 F.3d 894, 896 (9th Cir. 2013).

-- 8 of 10 --

4
The BIA based its conclusion that Li had not shown prima facie eligibility
for asylum or withholding of removal on her failure to show that she would be
“singled out” for religious persecution. The proper inquiry under 8 C.F.R.
§ 1208.13(b)(2)(iii) is whether Li’s evidence established the pattern or practice of
persecution that she alleged. The BIA thus misidentified the relevant issue and
applied an incorrect legal standard.
The BIA also misapplied the law regarding Li’s claim for CAT relief. A
noncitizen must show a “reasonable likelihood that the statutory requirements for
relief have been satisfied” to establish a prima facie CAT claim. Ordonez v. INS,
345 F.3d 777, 785 (9th Cir. 2003) (internal quotation omitted). “[E]vidence of
country conditions alone” can satisfy this burden. Aguilar-Ramos v. Holder, 594
F.3d 701, 705 (9th Cir. 2010).
The BIA rejected Li’s showing of a prima facie CAT claim because she
“ha[d] not made a prima facie showing that it is more likely than not that she will
be tortured in China . . . .” Again, the BIA applied an incorrect standard. “The
‘reasonable likelihood’ standard applies at the motion to reopen stage, while the
‘more likely than not standard’ applies to CAT protection claims themselves.”
Kaur v. Garland, 2 F.4th 823, 837 (2021) (citations omitted). To prevail on her
motion to reopen, Li did not need to show that it was more likely than not that she
will be tortured in China. See id. She needed “merely” to establish “a reasonable

-- 9 of 10 --

5
likelihood that she will be able to show” that she could meet the CAT standard. Id.
Because these errors amount to an abuse of discretion, remand is warranted so that
the BIA may apply the correct legal standards.
The BIA abused its discretion in finding that country conditions had not
changed and in failing to correctly assess Li’s showing of prima facie eligibility for
relief. Because Li established changed country conditions with respect to the
persecution of her religious group, I would grant the petition and remand this case
to the BIA for proper analysis of her prima facie eligibility for relief. I respectfully
dissent.

-- 10 of 10 --