NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

YU GUO,

Petitioner,

 v.

MATTHEW G. WHITAKER, Acting

Attorney General,

Respondent.

No. 16-70291

Agency No. A201-191-795

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 5, 2018** 

Pasadena, California

Before: O’SCANNLAIN and IKUTA, Circuit Judges, and STEEH,*** District

Judge.

 

FILED

DEC 18 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* 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 George Caram Steeh III, United States District Judge

for the Eastern District of Michigan, sitting by designation.
Petitioner, Yu Guo, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) denial of application for asylum and relief

from removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. The BIA

dismissed his application as untimely because Petitioner did not file his application

within one-year after arriving in this country as required by 8 U.S.C. 

§ 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2), and failed to show changed or

extraordinary circumstances that would excuse his untimeliness. For the reasons

stated below, we deny the petition.

1. Substantial evidence supports the BIA’s conclusion that extraordinary

circumstances do not justify Petitioner’s untimely filing. Extraordinary

circumstances include maintaining lawful status until a reasonable period before

filing for asylum. 8 C.F.R. § 1208.4(a)(5)(iv). Petitioner’s lawful status ended

when he dropped out of school in March, 2009, not when Immigration and

Customs Enforcement (“ICE’) notified him of his removability for doing so in

June, 2011. Dhital v. Mukasey, 532 F.3d 1044, 1050 (9th Cir. 2008) (student who

drops of out school loses F-1 status as of that date). Petitioner’s delay in applying

for asylum nearly four years after arriving in the United States, and 25 months after

he stopped attending school, without any explanation, is unreasonable. See id. at

1050 (waiting 22-months after failing to enroll in school to file for asylum

2 16-70291
unreasonable); Husyev v. Mukasey, 528 F.3d 1172, 1182 (9th Cir. 2008) (waiting

364-days after end of lawful status to apply for asylum unreasonable and

recognizing that “reasonable period” for filing would not ordinarily exceed six

months after end of lawful status).

2. Substantial evidence also supports the BIA’s conclusion that Petitioner’s

untimeliness is not excused under the “changed circumstances” exception. 8

U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4). Shortly before coming to the

United States in 2007, Petitioner’s high school teacher lectured him and a small

group of his classmates on Christianity, which led to his arrest and brief detention

until his mother paid a fine and secured his release. During this encounter with

police, Petitioner was accused of taking part in anti-government activities and

slapped twice. In November, 2008, and February, 2009, Petitioner mailed religious

materials back to that teacher in China. In March, 2009, Petitioner’s mother told

him that the police had come to her and told her that if he returned to China he

would be arrested for sending anti-government materials. The police never

contacted her again, but in November, 2010, Petitioner’s mother went to the police

of her own accord and was told his case was still open. She told him that if he

returned to China, he would be arrested. 

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Substantial evidence also supports the BIA’s conclusion that his mother’s

visit to the police in November, 2010 does not amount to “changed circumstances”

which materially affected Petitioner’s eligibility for asylum. The BIA correctly

concluded that the November, 2010 police visit instigated by his mother was a

mere continuation of the March, 2009 police visit which put Petitioner on notice

that he was subject to arrest for mailing religious materials if he returned to China. 

Petitioner’s situation is markedly distinguishable from Vahora v. Holder, 641 F.3d

1038, 1043-44 (9th Cir. 2011), where we found changed circumstances in India

existed which excused petitioner’s untimeliness because deadly riots took place

after Petitioner left the country, his house and farmhouse were burned down, one

brother was arrested and had not been seen since, and another brother disappeared

after police threatened to arrest him. By contrast, Petitioner can point to no

changed country conditions in China, nor any repercussions to his family members,

that would excuse his failure to timely file for asylum.

3. Substantial evidence also supports the BIA’s conclusion that Petitioner is

not entitled to withholding of removal because he failed to prove that it is more

likely than not that he would be subject to persecution based on protected status if

removed to China. Because Petitioner on appeal to the BIA did not argue that he

was persecuted in China and has not demonstrated past persecution, Petitioner is

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not entitled to a presumption that his life or freedom would be threatened in the

future. See 8 C.F.R. § 1208.16(b)(1). Rather, he must establish a clear probability

of future persecution in China. See Tamang v. Holder, 598 F.3d 1083, 1091 (9th

Cir. 2010); Al-Harbi v. I.N.S., 242 F.3d 882, 890-91 (9th Cir. 2001). Petitioner has

failed to demonstrate that his conversion to Christianity while in the United States,

or his mailing of religious materials to China in 2008 and 2009, puts him at risk for

persecution upon removal. Since early 2009, the police have not sought out any of

Petitioner’s relatives seeking news of his return or indicating any intention of

arresting him. His mother’s own inquiry to the police in November, 2010, where

she learned his case was not closed, does not suggest there is a clear probability

that Chinese authorities are looking for him and would persecute him now. See Gu

v. Gonzales, 454 F.3d 1014, 1021-22 (9th Cir. 2006) (holding Chinese Christian

did not have a well-founded fear of future prosecution even where a friend told him

that authorities had come to look for him, and police visited his home and told his

wife to ask him back for questioning).

PETITION FOR REVIEW DENIED.