Rebecca Makawa v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REBECCA MAKAWA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1644
Agency No.
A075-614-982
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2023**
Seattle, Washington
Before: McKEOWN and GOULD, Circuit Judges, and BAKER,*** International
Trade Judge.
Rebecca Makawa, a citizen of Zimbabwe, petitions for review of the Board of
Immigration Appeals’ order denying her motion to reopen her removal proceedings
* 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 M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
FILED
NOV 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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to allow her to reapply for asylum and withholding of removal. In 1999 an
Immigration Judge granted her application for voluntary departure; the Board
ultimately dismissed her appeal as abandoned but granted her voluntary departure
within 60 days. In 2017, she moved to reopen based on alleged changed
circumstances relating to the treatment of homosexuals in Zimbabwe. The Board
denied that motion because her evidence did not show any change in conditions in
Zimbabwe. We denied her petition for review in late 2020. Makawa v. Barr, 829 F.
App’x 841 (9th Cir. 2020) (mem.).
Nearly four months later, Makawa filed a second motion to reopen and for a
stay of removal in which she sought asylum based on an alleged material change in
country conditions in Zimbabwe due to the COVID-19 pandemic. She claimed that
she was diagnosed with AIDS in 2015, that she will be unable to obtain treatment in
Zimbabwe, and that Zimbabweans blame homosexuals for the pandemic. The Board
denied the motion to reopen1 because Makawa’s evidence related only to the general
global situation involving the pandemic’s effect on indigenous communities, poor
people, and homosexuals, contained no specific evidence about Zimbabwe, and did
not show that conditions in Zimbabwe materially changed for homosexuals because
of the pandemic.
1 The Board denied the motion for a stay of removal as moot.

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We review the Board’s denial of a motion to reopen for an abuse of discretion,
and we must uphold the decision unless it is arbitrary, irrational, or contrary to law.
Singh v. Garland, 46 F.4th 1117, 1121 (9th Cir. 2022). While an alien is normally
limited to filing one motion to reopen within 90 days of the removal order, there is
no time limit when the motion is based on changed country conditions in the country
of nationality. Id. To prevail on a motion to reopen, a petitioner must (1) produce
evidence of changed conditions in the country of removal, (2) show that the evidence
is material, (3) show that the evidence was unavailable and would not have been
discovered or presented at the previous hearing(s), and (4) establish prima facie
eligibility for relief. Id. The new evidence of changed country conditions must also
be “qualitatively different” from the evidence presented at the original hearing. Id.
(quoting Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004)).
Furthermore, we review only the denial of the motion to reopen—we do not
review the merits of Makawa’s claim for withholding of removal or asylum. Siong
v. INS, 376 F.3d 1030, 1042 (9th Cir. 2004). “ ‘The critical question is not whether
the allegations bear some connection to a prior application, but rather whether
circumstances have changed sufficiently that a petitioner who previously did not
have a legitimate claim’ now does.” Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th
Cir. 2017) (quoting Malty, 381 F.3d at 945).

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The Board found that Makawa “has not established that reopening is
warranted on the basis of her claim that because of the COVID-19 pandemic her
access to medical treatment will be [a]ffected or that the pandemic has caused
Zimbabwe to become more hostile to” homosexuals. The Board noted that
Makawa’s evidence consisted of “generalized news articles and reports” that were
“not specific to Zimbabwe.”
A review of the four news articles attached to Makawa’s motion confirms the
Board’s assessment. The first article discusses COVID-19’s impact on indigenous
people in Central America, India, Nepal, Colombia, the United States, South Africa,
and Ecuador. The second article, which discusses COVID-19’s effect on economic
inequality, does mention Zimbabwe, but says only that half the population of Harare
has “undependable access to safe drinking water” at home. The third article
discusses AIDS in the time of COVID-19 and refers to pandemic-related
discrimination against homosexuals in Uganda, Kenya, and Malawi. Its only
discussion of Zimbabwe, however, refers to another report and a comment by a
Zimbabwean LGBTQ community leader who “described the role of the media in
closing civic space in Zimbabwe . . . leading to a climate where civil society leaders
are being arrested and human rights work essentially criminalised.” Finally, the
fourth article discusses pandemic restrictions amplifying health risks to people with
HIV, but it has a dateline of Nairobi and Mexico City and refers to events in Uganda,

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Kenya, Mozambique, Ukraine, Lebanon, Kyrgyzstan, Trinidad and Tobago, Egypt,
and Mexico. Its sole mention of Zimbabwe appears in a list of several countries
where COVID-related shutdowns and associated lack of transport and loss of income
made it more difficult for people to access medication.
The statute permitting motions to reopen requires evidence of “changed
country conditions arising in the country of nationality or the country to which
removal has been ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii). The Board did not abuse
its discretion in finding that Makawa’s evidence was insufficient to satisfy the
statutory standard and that her motion to reopen was therefore both untimely and
“number-barred.”
PETITION DENIED.

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