Filed: Apr. 16, 2013
Latest Update: Mar. 28, 2017
Summary: 12-1505 Yang v. Holder BIA A070 310 263 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: 12-1505 Yang v. Holder BIA A070 310 263 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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12-1505
Yang v. Holder
BIA
A070 310 263
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 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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of April, two thousand thirteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 CHAO YANG,
14 Petitioner,
15
16 v. 12-1505
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Terri E. Marsh, Washington, D.C.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Carl H. McIntyre,
27 Jr., Assistant Director; Jason
28 Wisecup, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED and the pending motions are DISMISSED as moot.
5 Petitioner Chao Yang, a native and citizen of the
6 People’s Republic of China, seeks review of the BIA’s March
7 26, 2012 decision denying his motion to reopen and moves for
8 a stay of removal. In re Chao Yang, No. A070 310 263
9 (B.I.A. Mar. 26, 2012). Yang also moves for a Federal Rules
10 of Appellate Procedure (“FRAP”) 42(b) remand. Finally,
11 Yang’s recent substitute counsel has filed a motion for an
12 extension of time, which the government opposes. We assume
13 the parties’ familiarity with the underlying facts,
14 arguments for review, and procedural history in this case.
15 The BIA’s denial of Yang’s motion to reopen as untimely
16 was not an abuse of discretion. See Kaur v. BIA, 413 F.3d
17 232, 233 (2d Cir. 2005) (per curiam). A motion to reopen
18 generally must be filed no later than 90 days after the date
19 on which the final administrative decision has been rendered
20 in the proceedings sought to be reopened. 8 U.S.C.
21 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
22 dispute that Yang’s 2011 motion was untimely, as the final
2
1 administrative decision was issued in 2002. See 8 U.S.C.
2 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
3 This time limitation does not apply to a motion to
4 reopen “based on changed circumstances arising in the
5 country of nationality or in the country to which
6 deportation has been ordered, if such evidence is material
7 and was not available and could not have been discovered or
8 presented at the previous hearing.” 8 C.F.R.
9 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
10 Here, the BIA did not err by concluding that Yang failed to
11 demonstrate materially changed country conditions in China
12 that would excuse the untimely filing of his motion to
13 reopen.
14 First, as the BIA noted, Yang’s participation in the
15 Chinese Democracy Party (“CDP”) in the United States began
16 in 2011, well after he was ordered removed, and reflects a
17 self-induced change in personal circumstances. His motion,
18 therefore, is time barred. See Yuen Jin v. Mukasey, 538
19 F.3d 143, 155-56 (2d Cir. 2008); Wei Guang Wang v. BIA, 437
20 F.3d 270, 273-74 (2d Cir. 2006).
21 Moreover, substantial evidence supports the BIA’s
22 determination that Yang failed to demonstrate changed
3
1 country conditions in China. See Jian Hui Shao v. Mukasey,
2 546 F.3d 138, 169 (2d Cir. 2008); see also Matter of S-Y-G-,
3 24 I. & N. Dec. 247, 253 (BIA 2007). As the BIA determined,
4 Yang’s evidence shows a continuation of the Chinese
5 government’s mistreatment of certain democracy activists,
6 rather than any material change in conditions. Accordingly,
7 the BIA did not abuse its discretion in denying his untimely
8 motion to reopen. See Jian Hui Shao, 546 F.3d at 142, 149.
9 Yang also submits statements from his father that
10 Chinese officials were aware of his CDP activities and
11 threatened to punish him if he returned to China as proof
12 that country conditions have materially changed. The BIA,
13 however, gave those unsworn statements from an interested
14 party little weight before concluding that they were
15 insufficient to establish changed country conditions. See
16 Qin Wen Zheng v. Gonzales,
500 F.3d 143, 146-48 (2d Cir.
17 2007); Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315,
18 342 (2d Cir. 2006). We conclude that the BIA did not abuse
19 its discretion.
20 Accordingly, the BIA reasonably determined that Yang
21 failed to establish that conditions in China had materially
22 changed so as to warrant reopening, and the BIA did not
4
1 abuse its discretion in denying his untimely motion. See
2 8 C.F.R. § 1003.2(c)(2), (c)(3)(ii). For the foregoing
3 reasons, tolling in this case is now ended, the petition for
4 review is DENIED, and the pending motions are DISMISSED as
5 moot. Any pending request for oral argument in this petition
6 is DENIED in accordance with Federal Rule of Appellate
7 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
5
