Jianho Lui v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIANHO LUI,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70619
Agency No. A213-375-391
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Jianho Lui1, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his motion to reopen proceedings and
* 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).
1 Petitioner’s filings indicate that he spells his name “Liu.”
FILED
JAN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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rescind his in absentia removal order. We have jurisdiction under 8 U.S.C. § 1252.
We review for abuse of discretion the denial of a motion to reopen. Celis–
Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir. 2002). We grant and remand
the petition for review.
The BIA abused its discretion in denying Lui’s motion to reopen where it
failed to properly consider the totality of the circumstances in determining whether
Lui has established exceptional circumstances. See 8 U.S.C. § 1229a(b)(5)(C)(i),
(e)(1); Hernandez-Galand v. Garland, 996 F.3d 1030, 1034-35 (9th Cir. 2021) (“In
considering the totality of the circumstances, the BIA must first consider whether
‘petitioners did all they reasonably could to have their cases heard promptly,’ and
whether ‘through no fault of their own, [petitioners] have never had their day in
court to present their claim,’” in addition to other relevant considerations.)
(citations omitted). In addition, it appears the BIA did not properly credit Lui’s
declaration. See Celis-Castellano, 298 F.3d at 892 (“[T]he Board must accept the
facts in an alien’s affidavit as true unless inherently unbelievable.”). Thus, we
grant the petition for review and remand to the BIA for further proceedings
consistent with this disposition.
In light of this disposition, we do not reach Lui’s remaining contentions. See
Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are
not required to decide issues unnecessary to the results they reach).

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The motion for a stay of removal (Docket Entry No. 1) is granted. Lui’s
removal is stayed pending a decision by the BIA.
The parties must bear their own costs for this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.

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