Ping Dong v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PING DONG,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 11-72165
Agency No. A075-609-424
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 3, 2015
Pasadena, California
Before: GRABER and WATFORD, Circuit Judges, and TUNHEIM,** Chief
District Judge.
Ping Dong, a native and citizen of China, petitions for review of an order of
the Board of Immigration Appeals (BIA) denying her motion to reopen to present
evidence that she was forced to undergo two abortions in China in the 1980s.
FILED
OCT 06 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable John R. Tunheim, Chief District Judge for the U.S.
District Court for the District of Minnesota, sitting by designation.

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1. The BIA did not abuse its discretion in denying Dong’s untimely motion
to reopen for failure to present material, previously unavailable evidence of
changed country conditions. Evidence that Dong was subjected to forced abortions
in China in the 1980s was neither unavailable at the time of her March 2004 merits
hearing nor indicative of changed circumstances in China since then. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).
2. Nor did the BIA abuse its discretion in finding that Dong failed to
demonstrate due diligence in raising her ineffective-assistance-of-counsel claim so
as to warrant equitable tolling of the time and numerical limitations on motions to
reopen. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). Dong argues
that all of her previous lawyers provided ineffective assistance by failing to present
evidence that she was subjected to forced abortions in China. She was aware,
however, that her lawyers had not raised a forced-abortion claim by the time of the
2004 merits hearing, at which she and her husband represented themselves, and she
did not raise such a claim for more than seven years thereafter. Nor has she
attempted to comply with the Lozada requirements in corroborating her allegations
that her previous attorneys rendered ineffective assistance by failing to raise this
claim. See Reyes v. Ashcroft, 358 F.3d 592, 597–99 (9th Cir. 2004); In re Lozada,
19 I. & N. Dec. 637, 639 (B.I.A. 1988).

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Dong argues that she failed to present evidence of her forced abortions
because she relied on the advice of an unknown “gentleman” at the immigration
consultant’s office. Even assuming this argument was properly exhausted before
the BIA, we cannot say that it was reasonable for Dong to rely on this advice, as
the man informed her that he was not an attorney and did not work at the office.
Nor can we say that she “made reasonable efforts to pursue relief,” Avagyan, 646
F.3d at 679, as she was aware that forced abortions could serve as grounds for
relief, but does not appear to have raised the issue with any of her attorneys for
more than twelve years afterwards.
3. Dong moved in November 2009 for the BIA to reissue its June 2005
decision granting her voluntary departure so she could seek adjustment of status.
Dong argues that the BIA acted arbitrarily by refusing to reopen her case but
granting reopening in a factually somewhat similar case in the 1970s. We lack
jurisdiction to consider this argument. The BIA denied Dong’s November 2009
motion as untimely, holding that she failed to exercise diligence warranting
equitable tolling. Dong did not timely petition for review of that order, so we lack
jurisdiction to review it now. See 8 U.S.C. § 1252(b)(1).
4. Finally, we lack jurisdiction to review the BIA’s decision not to reopen
proceedings sua sponte. Go v. Holder, 744 F.3d 604, 609–10 (9th Cir. 2014).

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PETITION DENIED in part, DISMISSED in part.

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