Filed: Sep. 11, 2015
Latest Update: Mar. 02, 2020
Summary: changed country conditions. See Chedid, 573 F.3d at 37 (finding, that the BIA's determination was not arbitrary or capricious, where petitioner's affidavit provided no information regarding the, actions he took in the one-year period after his removal order);Department Country Reports).
United States Court of Appeals
For the First Circuit
No. 14-1159
XIN QIANG LIU,
Petitioner,
v.
LORETTA E. LYNCH,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Joshua Bardavid and Bardavid Law, on brief for petitioner.
Holly M. Smith, Senior Litigation Counsel, U.S. Department of
Justice, Civil Division, Office of Immigration Litigation,
Stuart F. Delery, Assistant Attorney General, Civil Division, and
Eric W. Marsteller, Senior Litigation Counsel, Office of
Immigration Litigation, on brief for respondent.
September 11, 2015
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch is substituted for former Attorney General Eric H.
Holder, Jr. as respondent.
TORRUELLA, Circuit Judge. Petitioner Xin Qiang Liu
("Liu"), a native and citizen of China, seeks judicial review of
the Board of Immigration Appeals' ("BIA") order dismissing his
appeal from an Immigration Judge's ("IJ") denial of his motion to
rescind an in absentia removal order and motion to reopen removal
proceedings. After careful consideration, we must deny Liu's
petition.
I. Background
Liu entered the United States without inspection at St.
Thomas, United States Virgin Islands, on or about March 18, 1998.
On that same date, the Immigration and Naturalization Service
("INS") served Liu with a notice to appear, charging him with
removability as an alien present in the United States without
having been admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i).1
INS advised Liu of his rights in Mandarin, and Liu claimed to
understand them.
While in custody, Liu retained former attorney Robert
Porges ("Porges") to represent him in the removal proceedings.2 In
1
The INS ceased to exist after the Homeland Security Act of 2002
transferred its functions to the Department of Homeland Security
("DHS").
2
On February 11, 2002, Porges pleaded guilty to (1) conspiracy to
engage in racketeering activity in violation of 18 U.S.C.
§ 1962(d); (2) engaging in a pattern of racketeering activity in
violation of 18 U.S.C. § 1546(a); and (3) conspiracy to commit tax
fraud in violation of various sections of Title 26 of the United
States Code. Porges admitted that he participated in the
preparation and submission of fraudulent documents related to
-2-
a motion for bond determination, Porges indicated that Liu intended
to seek political asylum in the United States, and that following
his release on bond, Liu would reside with a cousin in Brooklyn,
New York. The immigration court scheduled a hearing for June 23,
1998, and served Porges with notice of the hearing.
On June 23, 1998, attorney Víctor Ocampo ("Ocampo") from
Porges's law firm appeared telephonically on Liu's behalf from his
office in New York. Liu, however, failed to appear at the hearing.
Ocampo explained that Liu was absent because he was in Texas
helping his uncle with an emergency. Unpersuaded by Ocampo's
excuse for Liu's absence, the IJ ordered Liu removed in absentia.
Liu avers that Porges never informed him of his hearing date, and
upon contacting Porges's law firm, he was told his hearing date had
already passed. After learning of the removal order, Liu sought
assistance from a legal services agency in Manhattan, New York,
which prepared a motion to reopen for him.3 According to Liu, he
did not understand English, and simply signed the documents the
agency had prepared for him. As a result, Liu's motion was filed
as a pro se motion to reopen and to change venue on August 7, 1998.
claims for political asylum. Consequently, Porges was suspended
from practicing law before the BIA, the immigration courts, and the
INS. Subsequently, Porges was disbarred.
3
According to Liu, he hired individuals whom he believed to be
lawyers, but turned out to be part of a non-attorney "travel
agency." The agency prepared his motion to reopen, and Liu simply
signed where instructed.
-3-
Contrary to the excuse provided by Ocampo, Liu's motion included a
doctor's note dated June 22, 1998 (the day before his removal
hearing), indicating that he had been seen by a doctor on that date
for lower back pain and sciatica and that the doctor recommended
bed rest as treatment. On August 25, 1998, the IJ denied Liu's
motion to reopen. Liu did not appeal the IJ's decision to the BIA.
Following the IJ's denial of his motion to reopen, Liu remained in
the United States without authorization.
On January 13, 2012, almost fourteen years after he was
ordered removed, Liu filed a motion to rescind the in absentia
removal order and a motion to reopen his removal proceedings to
apply for asylum and related relief. In his motion, Liu sought
equitable tolling of the 180-day filing deadline to rescind a
removal order on the basis of ineffective assistance of counsel and
lack of notice, alleging that Porges's misconduct had caused him to
miss his removal hearing. Liu also sought to reopen his removal
proceedings to apply for asylum and related relief due to his fear
of religious persecution. According to Liu, since February 2011 he
has attended weekly services at the New Life Chinese Alliance
Church in Flushing, New York. Liu claims that he became deeply
religious, regularly participated in bible study and church choir,
and was officially baptized on April 23, 2011. Liu asserts that
after reading news articles and media reports documenting China's
persecution of Christians, he developed a fear that he would not be
-4-
able to freely worship if he returned to China and would be forced
to attend private illegal gatherings, where members are regularly
targeted for arrest and detention. Liu averred that since the
issuance of his in absentia removal order, conditions for
Christians in China had materially worsened, warranting asylum on
the basis of changed country conditions.
In a written decision issued on March 12, 2012, the IJ
denied Liu's motion to rescind the in absentia removal order and
motion to reopen removal proceedings as untimely and numerically
barred. The IJ explained that Liu did not qualify for the changed
country conditions exception to the numerical and temporal
limitations on motions to reopen because his motion was based
solely on changed personal circumstances as a result of his
conversion to Christianity. Specifically, the IJ found that the
evidence Liu submitted, which itself did not show that conditions
had worsened for Christians in China, was not material because Liu
only converted to Christianity in 2011, and was not a Christian in
1998. Therefore, the IJ determined that changed personal
circumstances could not serve as the basis for a motion to reopen
on the basis of changed country conditions. The IJ also determined
that Liu failed to provide any reason to warrant equitable tolling
of the 180-day filing deadline for a motion to rescind an in
absentia removal order given that Liu had not indicated any steps
-5-
he took in the interim fourteen years to remedy his immigration
status.4 Liu appealed the IJ's decision to the BIA.
The BIA dismissed Liu's appeal on September 11, 2013. In
addition to adopting and affirming the IJ's decision to deny Liu's
motions, the BIA added that waiting fourteen years to raise his
claim of ineffective assistance of counsel did not amount to due
diligence. Furthermore, the BIA noted that Liu's conversion to
Christianity was a change in personal circumstances and not a
change in country conditions, and also that China's restrictions on
religious practices were a continuation of previous policies,
rather than an increase in religious persecution. Finally, the BIA
concluded that Liu had failed to show that authorities in China
either knew of or would likely become aware of his religious
conversion if he returned to China. This timely petition for
review followed.
4
The IJ also determined that the notice provided to Liu's counsel
was sufficient to charge Liu with notice under §§ 239(a)(1) and (2)
of the Immigration and Naturalization Act ("INA"). The IJ further
noted that Liu's claims that he did not have notice was
contradicted by statements made in his August 1998 pro se motion to
reopen, and that because Liu was personally served with a notice to
appear, and was read his rights in Chinese, he was at least aware
that removal proceedings had been initiated against him. Lastly,
the IJ determined that even if Liu's claim based on ineffective
assistance of counsel was not time-barred pursuant to 8 C.F.R.
§ 1003.23(b)(4)(ii), it would fail on the merits because Liu did
not establish that his failure to appear was his counsel's fault.
-6-
II. Discussion
Liu alleges that the IJ abused its discretion in
determining that Liu failed to establish changed country conditions
and construing his motion to reopen as based only on changed
personal circumstances. Though Liu concedes that his personal
circumstances did change as a result of his conversion to
Christianity, he avers that his motion is explicitly based on the
worsening of conditions for Christians in China. Furthermore, Liu
claims that the IJ failed to consider the record as a whole, and
ignored reliable evidence showing an increase in attacks on
Christians in China. In addition, Liu asserts that the BIA ignored
his claim that he would continue to engage in unauthorized
religious activity if he returned to China by joining an
underground church and openly preaching the gospel, and therefore,
Liu contends that the BIA erred in determining that his religious
activity would not be targeted in China. Liu further argues that
the evidence of Porges's disbarment and conviction was
circumstantial corroboration for his claim that his failure to
appear and initial motion to reopen were not his own fault. Liu
also avers that he has satisfied all of the requirements set forth
in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988) for making
an ineffective assistance of counsel claim. Liu suggests that
Porges's failure to inform him of his hearing date constituted
ineffective assistance of counsel sufficient to amount to an
-7-
exceptional circumstance that would entitle him to reopen his
proceedings. Accordingly, Liu contends that the IJ and BIA's
failure to find that ineffective assistance of counsel caused him
to miss his hearing amounted to reversable error. We are thus
faced with two issues: (1) the merits of Liu's motion to rescind
the in absentia removal order on the basis of extraordinary
circumstances in the form of ineffective assistance of counsel and
(2) the disposition of Liu's motion to reopen on the basis of
changed country conditions.
This Court has jurisdiction over the BIA's September 2013
decision to dismiss Liu's appeal of the IJ's decision pursuant to
the Immigration and Nationality Act ("INA"), which gives the courts
of appeals exclusive jurisdiction to review final orders of
removal. See 8 U.S.C. § 1252(a)(5). Furthermore, "[f]or this court
to have jurisdiction to review a final order of removal, the alien
must have 'exhausted all administrative remedies available to the
alien as of right.'" Meng Hua Wan v. Holder, 776 F.3d 52, 56 (1st
Cir. 2015) (citing 8 U.S.C. § 1252(d)(1)). "The exhaustion
requirement is satisfied where . . . the agency chooses to address
the merits of a particular issue, regardless of whether the alien
raised that issue."
Id. We also have "jurisdiction to review the
BIA's decision to deny equitable tolling of the time and number
limitations" on motions to reopen. Neves v. Holder,
613 F.3d 30,
-8-
33 (1st Cir. 2010). Therefore, Liu's petition for review is
properly before us.
Motions to reopen are generally "disfavored as contrary
to the compelling public interests in finality and the expeditious
processing of proceedings." Xue Su Wang v. Holder, 750 F.3d 87, 89
(1st Cir. 2014) (quoting Nascimento v. Mukasey,
549 F.3d 12, 15
(1st Cir. 2008)).
We review the BIA's decisions under a deferential abuse
of discretion standard. Kucana v. Holder, 558 U.S. 233, 242 (2010)
(citing INS v. Doherty,
502 U.S. 314, 323 (1992)). This standard
requires a movant to "show that the BIA committed an error of law
or exercised its judgment in an arbitrary, capricious, or
irrational way." Xue Su
Wang, 750 F.3d at 89 (quoting Raza v.
Gonzales,
484 F.3d 125, 127 (1st Cir. 2007). This Court accepts
the BIA's findings of fact under the "substantial evidence"
standard, which makes its findings conclusive if "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." Hasan v. Holder,
673 F.3d 26, 33 (1st Cir.
2012) (quoting Guzmán v. INS,
327 F.3d 11, 15 (1st Cir. 2003)). We
examine the BIA's legal conclusions de novo, while "remaining
cognizant of and deferential to the BIA's expertise in applying the
relevant statutory framework." Hang Chen v. Holder,
675 F.3d 100,
106 (1st Cir. 2012) (citing Matos-Santana v. Holder,
660 F.3d 91,
93 (1st Cir. 2011)). Therefore, "[w]e reverse only if 'any
-9-
reasonable adjudicator would be compelled to conclude to the
contrary.'" Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir. 2009)
(quoting 8 U.S.C. § 1252(b)(4)(B)). Finally, "[w]hen the BIA
adopts and affirms the IJ's ruling but also examines some of the
IJ's conclusions, this Court reviews both the BIA's and the IJ's
opinion." Perlera-Sola v. Holder,
699 F.3d 572, 576 (1st Cir.
2012) (citing Matovu v. Holder,
577 F.3d 383, 386 (1st Cir. 2009)).
Because motions to reopen and removal orders are governed
by a statutory and regulatory complex, we first note the regulatory
provisions relevant to Liu's petition. Motions to reopen are
"generally limited both numerically and temporally." Meng Hua Wan,
776 F.3d at 56. Specifically, pursuant to 8 C.F.R. § 1003.23
(b)(1), a party may file only one motion to reopen, and that motion
must be filed within ninety days of the final administrative order.
There are, however, two pertinent exceptions to the filing
deadlines. First, "an in absentia order of removal may be reopened
if the alien can show either that he did not receive proper notice
of the removal proceedings or that his failure to appear was due to
exceptional circumstances beyond his control." Meng Hua
Wan, 776
F.3d at 56 (citing 8 C.F.R. § 1003.23(b)(4)(iii)(A); Kozak v.
Gonzáles,
502 F.3d 34, 35 (1st Cir. 2007)). A motion to reopen
based on exceptional circumstances must be filed within 180 days of
the removal order. 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1). Second,
a petitioner may file a motion to reopen at any time if he brings
-10-
the motion seeking to apply for asylum based on changed
circumstances arising in the country of nationality, and has
material evidence that was not available and could not have been
discovered or presented at the previous hearing. Id. § 1003.2
(c)(3)(ii). In extraordinary circumstances, parties may invoke
equitable tolling to extend statutory deadlines when they are
unable to comply with them through no fault of their own, although
we have not decided whether such tolling is available in the
immigration context.
Neves, 613 F.3d at 36.
Here, as the government correctly notes and Liu does not
dispute, Liu's motion to reopen based on exceptional circumstances
was untimely because the removal order was entered on June 23,
1998, and Liu did not file his motion to reopen until January 13,
2012, nearly fourteen years after the order and well beyond the
180-day regulatory deadline. Therefore, Liu must rely on the
doctrine of equitable tolling to bring his motion to reopen based
on exceptional circumstances. It is a well "settled appellate rule
that issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived." United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990); see also
Rodríguez v. Municipality of San Juan,
659 F.3d 168, 175 (1st Cir.
2011). Though Liu notes in his opening brief that the BIA found
that he failed to exercise the requisite due diligence to warrant
equitable tolling, Liu makes no argument in his opening brief to
-11-
show that he is in fact entitled to equitable tolling.
Consequently, because Liu argues that he exercised the requisite
due diligence to warrant equitable tolling for the first time in
his reply brief, the issue is waived. See Waste Mgmt. Holdings,
Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000) ("We have held,
with a regularity bordering on the monotonous, that issues advanced
for the first time in an appellant's reply brief are deemed
waived.").5
5
Assuming arguendo that the issue is not waived, the BIA did not
abuse its discretion in determining that Liu failed to demonstrate
the requisite due diligence to warrant equitable tolling of the
180-day filing deadline.
When applicable, "equitable tolling is a rare remedy to be
applied in unusual circumstances, not a cure-all for an entirely
common state of affairs." Neves, 613 F.3d at 36 (quoting Wallace
v. Kato,
549 U.S. 384, 396 (2007)). To establish equitable
tolling, a petitioner must demonstrate that: "(1) he has been
pursuing his rights diligently; and (2) some extraordinary
circumstance stood in his way." Bead v. Holder,
703 F.3d 591, 594
(1st Cir. 2013) (quoting
Neves, 613 F.3d at 36) (internal quotation
marks omitted). Indeed, a party who fails to exercise due diligence
may not pursue equitable tolling at all. See Chedid v. Holder,
573
F.3d 33, 37 (1st Cir. 2009);
Neves, 613 F.3d at 36 ("A party
seeking equitable tolling must have diligently pursued his rights
for the entire period he seeks tolled, not merely once he discovers
the underlying circumstances warranting tolling."); Beltre-Veloz v.
Mukasey, 533 F.3d 7, 11 (1st Cir. 2008) ("It cannot be gainsaid
that due diligence is a sine qua non for equitable tolling.").
Notably, the record contains no information regarding any steps
Liu took to remedy his immigration status in the nearly fourteen
years since his removal order. See Chedid, 573 F.3d at 37 (finding
that the BIA's determination was not "arbitrary or capricious"
where petitioner's affidavit provided no information regarding the
actions he took in the one-year period after his removal order);
Beltre-Veloz, 533 F.3d at 11 ("The critical datum is that the
petitioner waited eight years before inquiring into his immigration
status, despite knowing both that removal proceedings had commenced
-12-
Moving to Liu's second argument, the temporal bars to
motions to reopen do not apply to a petitioner who brings the
motion seeking to apply for asylum based on changed circumstances
arising in the country of nationality, and who has material
evidence that was not available and could not have been discovered
or presented at the previous hearing.
Liu contends that he is entitled to this exception
because of the evidence he presented to the IJ and BIA of worsening
conditions for Christians in China. In advancing this contention,
Liu relies on 8 U.S.C. § 1229a(c)(7)(C)(ii). This provision allows
a late motion to reopen, with "no time limit," if "the basis of the
motion is to apply for relief under sections 1158 or 1231(b)(3) of
this title and is based on changed country conditions arising in
the country of nationality or the country to which removal has been
ordered, if such evidence is material and was not available and
would not have been discovered or presented at the previous
proceeding." Id. § 1229a(c)(7)(C)(ii); see, e.g., Sugiarto v.
Holder,
761 F.3d 102, 103 (1st Cir. 2014).
To take advantage of the changed country conditions
exception, a petitioner must "make[] a convincing demonstration of
changed conditions in his homeland." Raza, 484 F.3d at 127. To
and that his work permit had expired. That inordinate period of
delay belies any serious assertion of due diligence.").
Accordingly, the BIA was well within its discretion in determining
that Liu had failed to exercise the requisite due diligence to
warrant equitable tolling of the 180-day filing deadline.
-13-
establish changed country conditions, the evidence must demonstrate
the "intensification or deterioration of country conditions, not
their mere continuation." Tawadrous v. Holder, 565 F.3d 35, 38
(1st Cir. 2009). A petitioner must also establish a link between
the evidence and an individualized risk of harm.
Id. at 39
(quoting Tandayu v. Mukasey,
521 F.3d 97, 101 (1st Cir. 2008). The
petitioner bears the burden of proving changed conditions. Zhao-
Cheng v. Holder,
721 F.3d 25, 28 (1st Cir. 2013) (citing Larngar v.
Holder,
562 F.3d 71, 76 (1st Cir. 2009)). Accordingly, a petitioner
must present new evidence of changed conditions that is material,
and, moreover, it must have been unavailable and undiscoverable at
the former hearing. 8 C.F.R. § 1003.2(c)(3)(ii); see also Hang
Chen, 675 F.3d at 106 (quoting Le Bin Zhu v. Holder,
622 F.3d 87,
92 (1st Cir. 2010)). The BIA "compares the evidence of country
conditions submitted with the motion to those that existed at the
time of the merits hearing." Haizem Liu v. Holder,
727 F.3d 53, 57
(1st Cir. 2013) (quoting In re S-Y-G-, 24 I. & N. Dec. 247, 253
(BIA 2007)). As we have held previously, a showing of only changed
personal circumstances cannot suffice; rather the petitioner must
show changed country conditions. "[The petitioner's] changed
personal circumstances, [namely his] conversion to Christianity,
did not constitute changed country circumstances and thus could not
form the basis of his motion. [Thus] . . . a change in personal
circumstances should not qualify as a change in country
-14-
circumstances." Yang Zhao-Cheng v. Holder, 721 F.3d 25, n.4 (1st
Cir. 2013) (internal citations and quotation marks omitted).
Contrary to Liu's contentions, the BIA and IJ both acted
within their discretion in finding that Liu had failed to establish
changed country conditions. Although Liu seems to suggest that the
IJ erred in not explicitly referencing certain pieces of evidence,
the IJ was within its discretion in doing so. In its written
decision, the IJ states that Liu "submitted over 500 pages of
secondary evidence, mostly cumulative and redundant, and when
concerning non-religious issues in China, irrelevant."6 The IJ
explicitly references and compares the 1998 and 2009 State
Department Country Reports on China and concluded that
"unauthorized Christian groups have been subject to blatant
persecution since the time of [Liu's] departure." Like the BIA,
the IJ "is not required to dissect in minute detail every
contention that a complaining party advances." Raza, 484 F.3d at
128. Rather, "[i]t is enough if the agency fairly considers the
points raised by the complainant and articulates its decision in
terms adequate to allow a reviewing court to conclude that the
agency has thought about the evidence and the issues and reached a
6
A complete review of Liu's evidence supports the IJ's
characterization. Liu includes more than fifteen news articles
that do not specifically concern the persecution of unregistered
Christian groups, but rather concern China's persecution of certain
spiritual groups, its detainment of political activists and
dissidents, and its suppression of pro-democracy protests.
-15-
reasoned conclusion." Id. Nothing in the record suggests that the
IJ completely disregarded the additional evidence Liu submitted,
but instead the IJ's decision suggests that the IJ gave greater
evidentiary weight to the State Department Reports. See Hang
Chen,
675 F.3d at 108 (approving of the highly probative value of State
Department Country Reports). Accordingly, Liu's arguments to the
contrary amount to an objection to the IJ's factual determinations
and the evidentiary weight the IJ accorded to competing pieces of
evidence, rather than legal error on the part of the IJ. See
Hasan, 673 F.3d at 32-33. Therefore, the IJ's failure to
explicitly reference each piece of Liu's submitted evidence does
not amount to an abuse of discretion.
In addition, a review of the evidence that the IJ
explicitly considered shows that the IJ's determination was
supported by reasonable, substantial, and probative evidence. The
1998 State Department Country Report demonstrates that unregistered
religious activity in China was restricted and subject to the
closure of churches, detainment of leaders, destruction of
property, surveillance and other forms of government restrictions.
The 2009 State Department Country Report provides that "[t]he
government continued to strictly control religious practices and
repress religious activity outside government-sanctioned
organizations and registered places of worship." (emphasis
-16-
added).7 Therefore, the IJ properly determined that Liu's evidence
did not establish the "intensification or deterioration of country
conditions," but rather their "mere continuation" based on her
comparison of the 1998 and 2009 State Department Country Reports.
See Tawadrous, 565 F.3d at 38.8 In addition, the BIA and IJ did
not abuse their discretion in determining that Liu's conversion to
Christianity in 2011 was a changed personal circumstance, which
cannot serve as the basis for a motion to reopen based on changed
country conditions. As we have recently held:
7
This court has considered several of Liu's news articles and
reports in recent cases, including the State Department Country
Reports from 1997-2009, the 2010 Congressional Executive Commission
on China Annual Report, the March 2011 report from ChinaAid, the
2011 U.S. Commission on International Religious Freedom Report,
several newspaper articles covering the Shouwang Church in Beijing,
and concluded that the evidence does not establish changed country
conditions for Christians in China. See generally
Zhao-Cheng, 721
F.3d at 28-29; Haizem
Liu, 727 F.3d at 57; Li Sheng Wu v. Holder,
737 F.3d 829, 833-34 (1st Cir. 2013).
8
A review of Liu's additional evidence also supports the IJ's and
BIA's finding of ongoing, rather than materially worsened,
religious persecution for Christians in China. For example, the
2010 Congressional-Executive Commission on China Report provides
that "Chinese authorities continued to ... harass and, in some
cases, detain and imprison members of unregistered Protestant
churches, while also razing church property." (emphasis added).
Similarly, the 2011 Annual Report of the United States Commission
on International Religious Freedom explains that "[u]nregistered
religious groups ... continue to face severe restrictions, although
the government tolerates some religious activity within approved
organizations." (emphasis added). Though Liu submits a 2010
Annual China Aid Report, which claims a 193.4% increase in
persecution between 2006 and 2010, and several newspaper articles
concerning the Shouwang Church in Beijing, the BIA "is not bound by
an outside group's categorization of what counts as persecution or
its estimates." Haizem
Liu, 727 F.3d at 57.
-17-
[The petitioner's] conversion to Christianity
was clearly only a change in personal
circumstances. Under the current case law, a
change typically will be categorized as a
change in personal circumstances, as opposed
to a change in country conditions, if the
change is self-induced . . . . This prevents
aliens from repeatedly reopening their removal
proceedings based on changes that are within
their control. We treat self-induced changes
as changes in personal conditions, even if the
change in personal circumstances will expose
the alien to persecution in his home country.
Rei Feng Wang v. Lynch, No. 14-1845, 2015 WL 4597553, at *3 (1st
Cir. July 31, 2015) (citations and internal quotation marks
omitted). Thus, "[a] change in personal circumstances alone does
not meet the standard for the exception to the time bar for changed
country conditions."
Id. at *3; see also
Zhao-Cheng, 721 F.3d at 27
n.4 ("Before addressing Yang's evidence of changed circumstances,
the BIA noted -- correctly -- that Yang's changed personal
circumstances, his 2011 conversion to Christianity, did not
constitute changed country circumstances and thus could not form
the basis of his motion." (emphasis in original)).9
Accordingly, the BIA and IJ acted within their discretion
in determining that Liu failed to establish that conditions for
9
Liu's case is very similar to recent cases decided by this
Court. See Haizem Liu, 727 F.3d at 54 ("This is one of a series of
cases in which we have similarly upheld the BIA's determination
that there have not been changed country conditions for Christians
returned to China who wish to practice in unregistered churches,
such as to warrant an exception to the time limits on motions to
reopen.") (citing Zhao-Cheng, 721 F.3d 25; Xiu Xia Zheng v. Holder,
502 F. App'x. 13 (1st Cir. 2013) (per curiam); Le Bin Zhu,
622 F.3d
87).
-18-
Christians in China materially worsened between 1998 and 2012. The
evidence consistently represents a mere continuation of religious
persecution, rather than an intensification. Therefore, Liu does
not qualify for the changed country conditions exception for filing
motions to reopen.
III. Conclusion
We find no error in the proceedings of the IJ and the
BIA. Accordingly, Liu's petition for review is denied.
Denied.
-19-
