Chen Li v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHEN LI,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70328
Agency No. A089-880-152
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2023**
San Francisco, California
Before: WARDLAW and HURWITZ, Circuit Judges, and IMMERGUT,*** District
Judge.
Constance (previously, Chen) Li, a native and citizen of China, filed an
untimely motion in 2016 to reopen her removal proceedings. 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 Karin J. Immergut, United States District Judge for the
District of Oregon, sitting by designation.
FILED
APR 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Immigration Appeals (“BIA”) denied that motion, and we denied Li’s petition for
review. Chen Li v. Barr, 792 F. App’x 526, 527 (9th Cir. 2020). Li then filed a
second motion to reopen and a motion for reconsideration, which the BIA denied.
Li petitions for review of that BIA order. We deny the petition in part and dismiss
it in part.
1. The BIA did not abuse its discretion in denying Li’s motion to reopen for
ineffective assistance of counsel. Even assuming that Li’s failure to comply with
the procedural requirements of In re Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988),
is not dispositive, she failed to demonstrate prejudice. See Martinez-Hernandez v.
Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (per curiam). The failure to establish
a prima facie case for relief is a valid ground for denying a motion to reopen. See
INS v. Abudu, 485 U.S. 94, 104 (1988). In denying the first motion to reopen, the
BIA held that Li had not demonstrated prima facie eligibility for relief, and we found
that conclusion supported by the record. Chen Li, 792 F. App’x at 526–27.
2. The BIA also did not abuse its discretion in finding that Li had not
established changed country conditions. Substantial evidence supports the BIA’s
conclusion that Li did not establish a significant deterioration of country conditions
for the transgender community since the filing of her first motion to reopen. See
Rodriguez v. Garland, 990 F.3d 1205, 1210 (9th Cir. 2021) (explaining that a motion
to reopen based on changed country conditions “is always required to demonstrate

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changed country conditions”).
3. The BIA’s order did not separately discuss Li’s motion for reconsideration.
However, any error was harmless because that motion is based on the same
ineffective assistance of counsel claim as her motion to reopen. See Zamorano v.
Garland, 2 F.4th 1213, 1227–28 (9th Cir. 2021).
4. We can review the BIA’s decision to deny sua sponte reopening only “for
the limited purpose of identifying legal or constitutional error.” Bonilla v. Lynch,
840 F.3d 575, 586 (9th Cir. 2016). Li has identified no such error, so we lack
jurisdiction to review that decision.
PETITION DENIED IN PART AND DISMISSED IN PART.

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