                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           JUN 10 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


LIANG ZHAO,                                      Nos. 15-73772
                                                      17-71462
              Petitioner,
                                                 Agency No. A087-871-758
 v.

WILLIAM P. BARR, Attorney General,               MEMORANDUM*

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted December 4, 2018**
                                Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges, and BASTIAN,*** District Judge.




      *
             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 Stanley Allen Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
      Liang Zhao (“Zhao”), a native and citizen of the People’s Republic of China,

petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of

asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”), and review of the BIA’s decision denying Zhao’s untimely

motion to reopen pursuant to the BIA’s sua sponte powers. Zhao claims to fear

harm by police in China for his participation in a Christian house church. We have

jurisdiction under 8 U.S.C. § 1252. We deny Zhao’s petition for review.

      First, the BIA properly concluded that Zhao was not credible based on

substantial evidence. Zhao left Michigan, stayed in Chicago for two weeks, and

then moved to Los Angeles because he claimed the Chinese police would not be

able to find him there. This is implausible on its face as it is no more likely to be

anonymous in Los Angeles than in Chicago. Moreover, this contradicts Zhao’s

testimony. When asked by the Immigration Judge why he moved to Los Angeles,

Zhao stated, “Because, because it was freezing cold during the winter in Chicago,

that environment I dislike.”

      In addition, while Zhao testified during his hearing before the Immigration

Judge that his father bribed officials at the airport so he could leave China, he did

not mention such bribe in his written statement. Zhao testified that he did not

mention it in his written statement because he did not personally see his father


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bribe the officials, but the BIA did not find his explanation persuasive. The

Immigration Judge noted that the omission of the alleged bribe was significant

because “it would be the only thing to show that [Zhao] was [in] danger at the time

he got to the airport,” such that his father would need to pay a bribe for Zhao’s

departure from China.

      Further, the BIA noted that the Immigration Judge observed that Zhao

“exhibited poor demeanor, as if he were fabricating the story of his father having to

bribe government officials to secure his safe departure from China.” The

Immigration Judge found that during Zhao’s testimony about his father’s alleged

bribery, Zhao appeared to be “making this part of his story up as he went along.”

See Manes v. Sessions, 875 F.3d 1261, 1265 (9th Cir. 2017) (denying petition for

review of BIA’s order affirming an immigration judge’s denial of application for

asylum because substantial evidence supported the immigration judge’s adverse

credibility determination based on petitioner’s demeanor).

      Substantial evidence supports the Immigration Judge’s adverse credibility

determination. The BIA thus properly denied Zhao’s claims for asylum,

withholding, and CAT protection, which were based on Zhao’s testimony.

      Second, the BIA’s determination as to whether it will exercise its sua sponte

authority to reopen proceedings is entirely discretionary and beyond the scope of


                                          3
our authority to review. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24

(9th Cir. 2011); Toufighi v. Mukasey, 538 F.3d 988, 993 n.8 (9th Cir. 2008);

Ekimian v. INS, 303 F.3d 1153, 1159-60 (9th Cir. 2002). It is undisputed that

Zhao’s motion to reopen was untimely. The BIA declined to exercise its

discretionary authority to reopen his proceedings sua sponte.

      This court “has jurisdiction to review Board decisions denying sua sponte

reopening for the limited purpose of reviewing the reasoning behind the decisions

for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir.

2016). Zhao has not raised a colorable constitutional claim nor a legal error, and

we therefore lack jurisdiction over the petition for review to the extent Zhao

challenges the BIA’s denial of sua sponte reopening.

      PETITION FOR REVIEW DENIED.




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