Filed: Apr. 29, 2016
Latest Update: Mar. 02, 2020
Summary: 14-1374 Jiang v. Lynch BIA A089 922 661 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMA
Summary: 14-1374 Jiang v. Lynch BIA A089 922 661 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMAR..
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14-1374
Jiang v. Lynch
BIA
A089 922 661
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 29th day of April, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 GUANG QING JIANG, AKA YANG,
14 Petitioner,
15
16 v. 14-1374
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Meer M. M. Rahman, New York, New
24 York.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; Jennifer
28 Williams, Senior Litigation
1 Counsel; Lance L. Jolley, Trial
2 Attorney; Office of Immigration
3 Litigation, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Guang Qing Jiang, a native and citizen of the
10 People’s Republic of China, seeks review of an April 8, 2014
11 decision of the BIA denying his motion to reopen as untimely.
12 In re Guang Qing Jiang, No. A089 922 661 (B.I.A. Apr. 8, 2014).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 We review the BIA’s denial of a motion to reopen “for abuse
16 of discretion, mindful that motions to reopen ‘are
17 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)
18 (per curiam) (quoting INS v. Doherty,
502 U.S. 314, 323 (1992)).
19 When the BIA considers relevant evidence of country conditions
20 in evaluating a motion to reopen, we review the BIA’s factual
21 findings under the substantial evidence standard. Jian Hui
22 Shao v. Mukasey,
546 F.3d 138, 169 (2d Cir. 2008).
2
1 The BIA’s denial of Jiang’s motion to reopen as untimely
2 was not an abuse of discretion. Jiang’s January 2014 motion
3 was untimely, as he filed it over one year after the final order
4 of removal was issued in July 2012. See 8 U.S.C.
5 § 1229a(c)(7)(C)(i) (setting 90-day period for filing motion
6 to reopen); 8 C.F.R. § 1003.2(c)(2) (same). Although failure
7 to meet this time limitation may be excused if the motion “is
8 based on changed country conditions arising in the country of
9 nationality or the country to which removal has been ordered,
10 if such evidence is material and was not available and would
11 not have been discovered or presented at the previous
12 proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii), the BIA reasonably
13 concluded that Jiang did not establish changed conditions for
14 pro-democracy activists in China.
15 Jiang asserted that “[a]s part of th[e] ‘Jasmine’ crackdown
16 [in 2011], Chinese authorities have arrested activists and
17 members of the China Democratic Party.” Pet’r’s Br. at 22.
18 Although some of Jiang’s evidence reflects that the “Jasmine
19 Revolution” “has prompted the heaviest wave of arrests of
20 Chinese activists for several years,” Certified Administrative
3
1 Record at 265, the Chinese government has long banned the party
2 and suppressed pro-democracy activity through arrests and
3 detention. According to the U.S. Department of State’s 2012
4 Country Report on Human Rights Practices, “the CDP [Chinese
5 Democracy Party] remained banned, and the government continued
6 to monitor, detain, and imprison current and former CDP
7 members.” Id. at 222. (Emphasis added.) It also reports
8 that “[o]ther current or former CDP members . . . remained in
9 prison or in RTL camps for their calls for political reform and
10 their affiliation with the CDP.”
Id. at 225. One news article
11 submitted by Jiang recounts the history of the CDP in China and
12 waves of arrests and crackdowns that predate Jiang’s hearing.
13 Further, the evidence presented by Jiang does not pertain to
14 returning Chinese nationals who have been politically active
15 while abroad. Accordingly, Jiang’s evidence showed no
16 relevant or material change in conditions in China.
17 Further, contrary to Jiang’s assertion, a change in
18 personal circumstances while in the United States, such as his
19 joining the National Committee Democratic Party of China
20 (“DPC”), is not a changed condition that excuses failure to meet
4
1 the time limitation on moving to reopen. Wei Guang Wang v. Bd.
2 of Immigration Appeals, 437 F.3d 270, 274 (2d Cir. 2006) (“A
3 self-induced change in personal circumstances cannot
4 suffice.”). To the extent that Jiang alleged a change
5 particular to himself that might excuse his motion’s
6 untimeliness—the Chinese government’s awareness of his
7 political activity in the United States—the BIA did not abuse
8 its discretion in declining to give weight to his evidence, a
9 letter from his father and a statement from a DPC chairman in
10 the United States. See Xiao Ji Chen v. U.S. Dep’t of Justice,
11
471 F.3d 315, 342 (2d Cir. 2006) (holding that weight given
12 corroborating evidence lies largely with discretion of agency).
13 Jiang does not meaningfully challenge the BIA’s decision to
14 afford limited weight to these documents. See Yueqing Zhang
15 v. Gonzales,
426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
16 Moreover, given the lack of evidence that the chairman had
17 knowledge of current conditions in China; the fact that Jiang’s
18 father’s letter was an unsworn statement, prepared for the
19 purpose of litigation by an interested party not subject to
20 cross examination; and its underlying adverse credibility
5
1 determination with regard to Jiang, the BIA did not abuse its
2 discretion in declining to give weight to the documents. See
3 Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007)
4 (upholding agency’s refusal to credit applicant’s
5 individualized evidence supporting motion to reopen when
6 adverse credibility determination was made in underlying
7 proceedings); Xiao Ji
Chen, 471 F.3d at 342; Matter of H-L-H
8 & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving
9 diminished evidentiary weight to letters from interested
10 witnesses not subject to cross examination), overruled on other
11 grounds by Hui Lin Huang v. Holder,
677 F.3d 130 (2d Cir. 2012).
12 Jiang’s failure to present objective evidence of the
13 Chinese government’s awareness of his political activities or
14 a pattern or practice of persecution of individuals who were
15 politically active outside of China meant that Jiang could not
16 demonstrate either any material change in country conditions
17 or his prima facie eligibility for relief. See Hongsheng Leng
18 v. Mukasey,
528 F.3d 135, 143 (2d Cir. 2008) (per curiam).
19 Finally, we construe his public policy-based argument that the
20 BIA should have reopened as an argument that the BIA should have
6
1 decided to reopen sua sponte; we lack jurisdiction, however,
2 to review that “entirely discretionary” decision. Ali, 448
3 F.3d at 518 (citing 8 C.F.R. § 1003.2(a)).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O=Hagan Wolfe, Clerk
7
